IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, )

)

 Plaintiff, )

)

and )

)

STATE OF NEW MEXICO, )

STATE OF MONTANA )

 )

 Plaintiff-Intervenors, )

)

v. )

 )

NAVAJO REFINING COMPANY, L.P. , )

MONTANA REFINING COMPANY )

)

 Defendants. ) 

 )

 

Civil No. 

CONSENT DECREE
i

TABLE OF CONTENTS

I. Jurisdiction and Venue (Paragraphs 1-3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. Applicability and Binding Effect (Paragraphs 4-8) ..............................7

III. Objectives (Paragraph 9) ..................................................9

IV. Definitions (Paragraph 10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

V. Affirmative Relief/Environmental Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

11. NOx Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

12. SO2 Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

13. PM Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

14. CO Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

15. NSPS Applicability of FCCU Regenerators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

16. NOx Emissions Reductions from Heaters and Boilers . . . . . . . . . . . . . . . . . . . . . . . 36

17. SO2 Emissions Reductions from and NSPS Applicability of Heaters and Boilers . . 39

18. NSPS Applicability of and Compliance for Sulfur Recovery Plant . . . . . . . . . . . . . 40

19. NSPS Applicability of and Compliance for Flaring Devices . . . . . . . . . . . . . . . . . . 44

20. Control of Acid Gas Flaring Incidents and Tail Gas Incidents . . . . . . . . . . . . . . . . . 45

21. Control of Hydrocarbon Flaring Incidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

22. Benzene Waste NESHAP Program Enhancements . . . . . . . . . . . . . . . . . . . . . . . . . 56

23. Leak Detection and Repair Program Enhancements . . . . . . . . . . . . . . . . . . . . . . . . . 76

24. Incorporation of Consent Decree Requirements into Federally-Enforceable
ii

Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

25. Obtaining Construction Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

VI. Emission Credit Generation (Paragraph 26) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

VII. Modifications to Implementation Schedules (Paragraphs 27-28) . . . . . . . . . . . . . . . . . . 93

VIII. Environmentally Beneficial Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

29. Compliance with NSPS Subpart QQQ at the Artesia and Lovington Refineries . . . 96

30. Operation of the 40 LTD Sulfur Recovery Unit at Artesia on Hot Standby . . . . . . . 97

31. Installation of an Additional Wet Gas Compressor at the Artesia FCCU . . . . . . . . 98

32. Community SEPs for Navajo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

33. Environmental Management System Baseline Assessment for Navajo . . . . . . . . . . 99

34 - 36. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

IX. Reporting and Recordkeeping (Paragraph 37) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

X. Civil Penalty (Paragraphs 38 - 41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

XI. Stipulated Penalties (Paragraph 42) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

43. Paragraph 11 – Requirements for NOx Emission Reductions from FCCUs . . . . . 109

44. Paragraph 12 – Requirements for SO2 Emission Reductions from FCCUs . . . . . . 110

45. Paragraph 13 – Requirements for PM Emission Reductions from FCCUs . . . . . . 112

46. Paragraph 14 – Requirements for CO Emission Reductions from FCCUs . . . . . . 113

47. Paragraph 16 – Requirements for NOx Emission Reductions from Heaters/Boilers114

48. Paragraph 17 – Requirements for SO2 Emission Reductions from Heaters/Boilers 115

49. Paragraph 18 – Requirements for NSPS Applicability of Sulfur Recovery Plant . 116
iii

50. Paragraph 19 – Requirements for NSPS Applicability of Flaring Devices . . . . . . 117

51. Paragraph 20 – Requirements for Control of AG Flaring and Tail Gas Incidents . 118

52. Paragraph 21 – Requirements for Control of HC Flaring Incidents . . . . . . . . . . . . 121

53. Paragraph 22 – Requirements for Benzene Waste NESHAP Enhancements . . . . . 122

54. Paragraph 23 – Requirements for Leak Detection and Repair Enhancements . . . . 125

55. Paragraph 24 – Requirements to Incorporate CD Requirements into Permits . . . . 127

56. Paragraphs 29-31 – Requirements related to Environmentally Beneficial Projects 127

57. Paragraph 37 – Requirements for Reporting and Recordkeeping . . . . . . . . . . . . . . 129

58. Paragraphs 38-39 – Requirements for Payment of Civil Penalties . . . . . . . . . . . . . 129

59. Paragraph 60 – Requirement to Escrow Stipulated Penalties . . . . . . . . . . . . . . . . . 130

60. Payment of Stipulated Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

61. Stipulated Penalties Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

XII. Interest (Paragraph 62) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

XIII. Right of Entry (Paragraph 63) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

XIV. Force Majeure (Paragraphs 64 - 72) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

XV. Retention of Jurisdiction/Dispute Resolution (Paragraphs 73 - 81) . . . . . . . . . . . . . . . 135

XVI. Effect of Settlement (Paragraph 82) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

XVII. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

83. Other Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

84. Post-Permit Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

85. Failure of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
iv

86. Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

87. Post-Lodging/Pre-Entry Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

88. Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

89. Public Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

90. Public Notice and Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

91. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

92. Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

93. Paperwork Reduction Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

94. Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

XVIII. Termination (Paragraph 95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

XIX. Signatories (Paragraph 96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
v

TABLE OF APPENDICES

Appendix A – May 10, 2001 NMED Compliance Order to Navajo; July 27, 2001 NMED

Compliance Order to Navajo

Appendix B – List of Flaring Devices

Appendix C – List of Controlled Heaters and Boilers

Appendix D – Determining the Optimized Addition Rates of Low NOx Combustion

Promotors and NOx Reducing Catalyst Additives at the Artesia FCCU

Appendix E – NSPS Subpart J Compliance Schedule for Flares

Appendix F – Logic Diagram for Paragraph 20

Appendix G – Summary of Reports, Plans and Certifications for the Benzene Waste

NESHAP Enhanced Program Provisions of Paragraph 22 of the Consent

Decree

Appendix H – Summary of Reports, Plans and Certifications for the LDAR Enhanced

Program Provisions of Paragraph 23 of the Consent Decree
CONSENT DECREE

WHEREAS, plaintiff the United States of America ("Plaintiff" or "the United States"), by

the authority of the Attorney General of the United States and through its undersigned counsel,

acting at the request and on behalf of the United States Environmental Protection Agency

("EPA"), and plaintiff-intervenors the State of New Mexico and the State of Montana

(“Plaintiff-Intervenors”) allege upon information and belief that defendants Navajo Refining

Company, L.P. (“Navajo”) and Montana Refining Company (“Montana Refining”) have violated

and/or continue to violate the requirements of the Clean Air Act, the New Mexico Air Quality

Control Act, the Montana Clean Air Act, and the regulations and permits promulgated thereunder

at Navajo’s petroleum refineries in Artesia, New Mexico, and Lovington, New Mexico, and at

Montana Refining’s petroleum refinery in Great Falls, Montana (collectively “Covered

Refineries”);

WHEREAS, Navajo, Montana Refining, and their parent Holly Corporation (“Holly”)

approached federal and state authorities in an effort to resolve cooperatively the allegations and

concerns raised;

WHEREAS, the United States specifically alleges that Navajo and Montana Refining

have violated and/or continue to violate the following statutory and regulatory provisions: 

1) Prevention of Significant Deterioration ("PSD") requirements found at Part C of

Subchapter I of the Clean Air Act (the "Act"), 42 U.S.C. §§ 7475, and the regulations

promulgated thereunder at 40 C.F.R. § 52.21 (the "PSD Rules"); and “Plan Requirements

for Non-Attainment Areas” at Part D of Subchapter I of the Act, 42 U.S.C. §§ 7502-7503,

and the regulations promulgated thereunder at 40 C.F.R. § 51.165(a) and (b) and at
2

Title 40, Part 51, Appendix S, and at 40 C.F.R. § 52.24 (“PSD/NSR Regulations”), for

heaters and boilers and fluid catalytic cracking unit catalyst regenerators for NOx, SO2,

CO and PM; 

2) New Source Performance Standards (“NSPS”) found at 40 C.F.R. Part 60, Subparts A

and J, under Section 111 of the Act, 42 U.S.C. § 7411 (“Refinery NSPS Regulations”),

for sulfur recovery plants, fuel gas combustion devices, and fluid catalytic cracking unit

catalyst regenerators; 

3) Leak Detection and Repair (“LDAR”) requirements promulgated pursuant to

Sections 111 and 112 of the Act, and found at 40 C.F.R. Part 60 Subparts VV and GGG;

40 C.F.R. Part 61, Subparts J and V; and 40 C.F.R. Part 63, Subparts F, H, and CC

(“LDAR Regulations”); and 

4) National Emission Standards for Hazardous Air Pollutants (“NESHAP”) for Benzene

Waste Operations promulgated pursuant to Section 112(e) of the Act, and found at 

40 C.F.R. Part 61, Subpart FF (“Benzene Waste NESHAP Regulations”).

WHEREAS, the United States also specifically alleges with respect to the Covered

Refineries that, upon information and belief, Navajo and Montana Refining have been and/or

continue to be in violation of the state implementation plans (“SIPs”) and other state rules

adopted by the states in which the Covered Refineries are located to the extent that such plans or

rules implement, adopt or incorporate the above-described Federal requirements;
3

WHEREAS, the State of New Mexico and the State of Montana have sought to intervene

in this matter alleging violations of their respective applicable SIP provisions and other state

rules incorporating and implementing the foregoing federal requirements;

WHEREAS, the New Mexico Environment Department (“NMED”) issued a compliance

order to Navajo on May 10, 2001 (“May 10, 2001 NMED Compliance Order”) alleging

numerous violations of emission limits at the fluid catalytic cracking unit at the Artesia Refinery,

and issued another compliance order to Navajo on July 27, 2001 (“July 27, 2001 NMED

Compliance Order”) alleging numerous violations of the Refinery MACT at 40 C.F.R. Part 63,

Subpart CC;

WHEREAS, the May 10, 2001 NMED Compliance Order and the July 27, 2001 NMED

Compliance Order are attached as Appendix A;

WHEREAS, Navajo and Montana Refining are wholly-owned subsidiaries of Holly;

WHEREAS, the United States, New Mexico, Montana, Navajo, Montana Refining, and

Holly agree that the affirmative relief and environmental projects identified in Sections V

and VIII of this Consent Decree will reduce annual emissions from the Covered Refineries by the

following amounts: 1) nitrogen oxide by approximately 245 tons; 2) sulfur dioxide by

approximately 2350 tons; 3) volatile organic compounds by approximately 120 tons; and

4) particulate matter (“PM”) by approximately 102 tons;

 WHEREAS, with respect to the provisions of Paragraph 20 (“Control of Acid Gas Flaring

Incidents and Tail Gas Incidents”) of this Consent Decree, EPA maintains that "[i]t is the intent

of the proposed standard [40 C.F.R. § 60.104] that hydrogen-sulfide-rich gases exiting the amine
4

regenerator [or sour water stripper gases] be directed to an appropriate recovery facility, such as a

Claus sulfur plant," see Information for Proposed New Source Performance Standards: Asphalt

Concrete Plants, Petroleum Refineries, Storage Vessels, Secondary Lead Smelters and

Refineries, Brass or Bronze Ingot Production Plants, Iron and Steel Plants, Sewage Treatment

Plants, Vol. 1, Main Text at 28;

WHEREAS, EPA further maintains that the failure to direct hydrogen-sulfide-rich gases

to an appropriate recovery facility -- and instead to flare such gases under circumstances that are

not sudden or infrequent or that are reasonably preventable -- circumvents the purposes and

intentions of the standards at 40 C.F.R. Part 60, Subpart J;

WHEREAS, EPA recognizes that “Malfunctions,” as defined in Paragraph 10 of this

Consent Decree and 40 C.F.R. § 60.2, of the “Sulfur Recovery Plants” or of “Upstream Process

Units” may result in flaring of “Acid Gas” or “Sour Water Stripper Gas” on occasion, as those

terms are defined herein, and that such flaring does not violate 40 C.F.R. § 60.11(d) if the owner

or operator, to the extent practicable, maintains and operates such units in a manner consistent

with good air pollution control practice for minimizing emissions during these periods;

WHEREAS, with respect to Paragraph 20 of the Consent Decree, Navajo and Montana

Refining maintain that with respect to NSPS: (i) Flaring is not regulated with respect to sulfur

dioxide emissions except for flares subject to 40 C.F.R. § 60.104(a)(1); and (ii) 40 C.F.R.

§ 60.104(a)(1) applies only to flares that are otherwise subject to NSPS and that are maintained

to combust Acid Gases or Sour Water Stripper Gases on a continuous basis as a part of normal

refinery operations;
5

WHEREAS, EPA recognizes that the combustion in a flare subject to 40 C.F.R.

§ 60.104(a)(1) of process upset gases or fuel gas that is released to the flare as a result of relief

valve leakage or other emergency malfunctions does not violate 40 C.F.R. § 60.104(a)(1);

WHEREAS, by entering into this Consent Decree Navajo and Montana Refining are

committed to pro-actively resolving environmental concerns related to their operations, and

Holly is committed to assist in these efforts;

WHEREAS, discussions between the Parties and Holly have resulted in the settlement

embodied in the Consent Decree;

WHEREAS, Navajo and Montana Refining have waived any applicable federal or state

requirements of statutory notice of the alleged violations;

WHEREAS, Navajo and Montana Refining denied and continue to deny the violations

alleged in the Complaint, the May 10, 2001 NMED Compliance Order, and the July 27, 2001

NMED Compliance Order, and maintain that they have been and remain in compliance with all

applicable statutes, regulations and permits and are not liable for civil penalties and injunctive

relief. However, in the interest of settlement and to accomplish their objectives of cooperatively

reconciling the goals of the United States, New Mexico, Montana, Navajo, and Montana

Refining under the Clean Air Act and the corollary state statutes, Navajo and Montana Refining

have agreed to undertake the installation of air pollution control equipment and enhancements to

their air pollution management practices at the three Covered Refineries to reduce air emissions;

WHEREAS, notwithstanding the foregoing reservations, the Parties and Holly agree that: 

(a) settlement of the matters set forth in the complaint (filed herewith), the May 10, 2001 NMED
6

Compliance Order, and the July 27, 2001 NMED Compliance Order, is in the best interests of the

Parties, Holly, and the public; and (b) entry of the Consent Decree without litigation is the most

appropriate means of resolving this matter;

WHEREAS, the Parties and Holly recognize, and the Court by entering the Consent

Decree finds, that the Consent Decree has been negotiated at arms length and in good faith and

that the Consent Decree is fair, reasonable, and in the public interest;

NOW THEREFORE, with respect to the matters set forth in the complaint, the May 10,

2001 NMED Compliance Order, and the July 27, 2001 NMED Compliance Order, and in

Section XVI of the Consent Decree (“Effect of Settlement”), and before the taking of any

testimony, without adjudication of any issue of fact or law, and upon the consent and agreement

of the Parties to the Consent Decree and Holly, it is hereby ORDERED, ADJUDGED and

DECREED as follows:

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action and over the Parties

and Holly pursuant to 28 U.S.C. §§ 1331, 1345 and 1355. In addition, this Court has jurisdiction

over the subject matter of this action pursuant to Sections 113(b) and 167 of the CAA, 42 U.S.C.

§ 7413(b) and 7477. The United States' complaint states a claim upon which relief may be

granted for injunctive relief and civil penalties against Navajo and Montana Refining under the

Clean Air Act. Authority to bring this suit is vested in the United States Department of Justice

by 28 U.S.C. §§ 516 and 519, Section 305 of the CAA, 42 U.S.C. § 7605.
7

2. Venue is proper in the District of New Mexico pursuant to Section 113(b) of the CAA,

42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b) and (c), and 1395(a). Navajo, Montana Refining,

and Holly consent to the personal jurisdiction of this Court, waive any objections to venue in this

District, and do not object to the intervention of New Mexico and Montana in this action.

3. Notice of the commencement of this action has been given to the State of New Mexico

and the State of Montana in accordance with Section 113(a)(1) of the Clean Air Act, 42 U.S.C.

§ 7413(a)(1), and as required by Section 113(b) of the CAA, 42 U.S.C. § 7413(b).

II. APPLICABILITY AND BINDING EFFECT

4. The provisions of the Consent Decree shall apply to the Artesia Refinery, the

Lovington Refinery, and the Great Falls Refinery. The provisions of the Consent Decree shall be

binding upon the United States, the Plaintiff-Intervenors, Holly and its officers, successors and

assigns, Navajo and its officers, successors, and assigns, and Montana Refining and its officers,

successors, and assigns.

5. Navajo, Montana Refining, and Holly agree not to contest the validity of the Consent

Decree in any subsequent proceeding to implement or enforce its terms.

6. Effective from the Date of Entry of the Consent Decree until its termination, Navajo

agrees that its Artesia and Lovington Refineries are covered by this Consent Decree, and

Montana Refining agrees that its Great Falls Refinery is covered by this Consent Decree. 

Effective from the Date of Lodging of the Consent Decree, Navajo or Montana Refining, as

applicable, shall give written notice of the Consent Decree to any successors in interest prior to

the transfer of ownership or operation of any portion of any Covered Refinery and shall provide a
8

copy of the Consent Decree to any successor in interest. Navajo or Montana Refining, as

applicable, shall notify the United States, the State of New Mexico, and the State of Montana in

accordance with the notice provisions set forth in Paragraph 91 (Notice), of any successor in

interest at least thirty (30) days prior to any such transfer.

7. Navajo or Montana Refining, as applicable, shall condition any transfer, in whole or in

part, of ownership of, operation of, or other interest (exclusive of any non-controlling

non-operational shareholder interest) in, any Covered Refinery upon the execution by the

transferee of a modification to the Consent Decree, which makes the terms and conditions of the

Consent Decree that apply to such Covered Refinery applicable to the transferee. The Parties

shall file that modification with the Court promptly upon such transfer. In the event of any such

transfer of ownership or other interest in any Covered Refinery, Navajo or Montana Refining, as

applicable, shall be released from the obligations and liabilities of this Consent Decree provided

that, at the time of such transfer, the transferee has the financial and technical ability to assume

and has contractually agreed with Navajo or Montana Refining, as applicable, to assume these

obligations and liabilities.

8. Navajo and Montana Refining shall provide a copy of the applicable provisions of this

Consent Decree to each consulting or contracting firm that is retained to perform work required

under this Consent Decree, upon execution of any contract relating to such work. No later than

thirty (30) days after the Date of Lodging of the Consent Decree, Navajo and Montana Refining

also shall provide a copy of the applicable provisions of this Consent Decree to each consulting

or contracting firm that Navajo or Montana Refining already has retained to perform the work
9

required under this Consent Decree. Copies of the Consent Decree do not need to be supplied to

firms who are retained to supply materials or equipment to satisfy requirements under this

Consent Decree.

III. OBJECTIVES

9. It is the purpose of the Parties and Holly in this Consent Decree to further the

objectives of the federal Clean Air Act, the New Mexico Air Quality Control Act, and the

Montana Clean Air Act.

IV. DEFINITIONS

10. Unless otherwise defined herein, terms used in the Consent Decree shall have the

meaning given to those terms in the Clean Air Act, and the implementing regulations

promulgated thereunder. The following terms used in the Consent Decree shall be defined for

purposes of the Consent Decree and the reports and documents submitted pursuant thereto as

follows:

A. “Acid Gas” shall mean any gas that contains hydrogen sulfide and is generated at a

refinery by the regeneration of an amine solution.

B. “Acid Gas Flaring” or “AG Flaring” shall mean the combustion of Acid Gas and/or

Sour Water Stripper Gas in a AG Flaring Device. 

C. “Acid Gas Flaring Device” or “AG Flaring Device” shall mean any device at the

Covered Refineries that is used for the purpose of combusting Acid Gas and/or Sour Water

Stripper Gas, except facilities in which gases are combusted to produce sulfur or sulfuric acid. 

The AG Flaring Devices currently in service at the Covered Refineries are identified in
10

Appendix B to the Consent Decree. To the extent that, during the duration of the Consent

Decree, any Covered Refinery utilizes AG Flaring Devices other than those specified in

Appendix B for the purpose of combusting Acid Gas and/or Sour Water Stripper Gas, those AG

Flaring Devices shall be covered under this Consent Decree. The heaters and boilers at the Great

Falls Refinery that currently are used to combust SWS gas shall not be deemed AG Flaring

Devices for purposes of this Consent Decree.

D. “Acid Gas Flaring Incident” or “AG Flaring Incident” shall mean the continuous or

intermittent combustion of Acid Gas and/or Sour Water Stripper Gas that results in the emission

of sulfur dioxide equal to, or in excess of, five-hundred (500) pounds in any twenty-four (24)

hour period; provided, however, that if five-hundred (500) pounds or more of sulfur dioxide have

been emitted in a twenty-four (24) hour period and Flaring continues into subsequent,

contiguous, non-overlapping twenty-four (24) hour period(s), each period of which results in

emissions equal to, or in excess of five-hundred (500) pounds of sulfur dioxide, then only one

AG Flaring Incident shall have occurred. Subsequent, contiguous, non-overlapping periods are

measured from the initial commencement of Flaring within the AG Flaring Incident.

E. “Alternative NOx Control Technology” shall mean NOx control technology, other

than current or Next Generation Ultra Low NOx Burners (“ULNBs”), that achieves an emission

rate of 0.060 lb/mmBTU or less.

F. “Applicable Federal and State Agencies” shall mean, with respect to the Artesia and

Lovington Refineries, EPA’s Office of Regulatory Enforcement, EPA’s Region 6, and the

NMED; and with respect to the Great Falls Refinery, EPA’s Office of Regulatory Enforcement,

EPA’s Region 8, and the Montana DEQ;
11

G. “Artesia Refinery” shall mean the refinery owned and operated by Navajo in Artesia,

New Mexico.

H. "Calendar quarter" shall mean the three month period ending on March 31st,

June 30th, September 30th, and December 31st.

I. “CEMS” shall mean continuous emissions monitoring system.

J. “Consent Decree” or “Decree” shall mean this Consent Decree, including any and all

appendices attached to the Consent Decree.

K. “Controlled Heaters and Boilers” shall mean the heaters and boilers that are listed in

Appendix C.

L. “Covered Refineries” shall mean the refineries that are subject to the requirements of

this Consent Decree: the Artesia Refinery, the Great Falls Refinery, and the Lovington Refinery. 

M. “CO” shall mean carbon monoxide.

N. "Date of Lodging of the Consent Decree" shall mean the date the Consent Decree is

filed for lodging with the Clerk of the Court for the United States District Court for the District

of New Mexico.

O. "Date of Entry of the Consent Decree" shall mean the date the Consent Decree is

approved or signed by the United States District Court Judge.

P. "Day" or "Days" as used herein shall mean a calendar day or days. 

Q. “FCCU” as used herein shall mean a fluidized catalytic cracking unit and its

regenerator and associated CO boiler(s) where present.

R. “Flaring Device” shall mean either an AG and/or an HC Flaring Device.

S. “Fuel Oil” shall mean any liquid fossil fuel with sulfur content of greater than 0.05%

by weight.
12

T. “Great Falls Refinery” shall mean the refinery owned and operated by Montana

Refining in Great Falls, Montana.

U. “Holly” shall mean the Holly Corporation, its successors and assigns, and its officers,

directors, and employees in their capacities as such.

V. “Hydrocarbon Flaring” or “HC Flaring” shall mean the combustion of

refinery-generated gases, except for Acid Gas and/or Sour Water Stripper Gas and/or Tail Gas, in

a Hydrocarbon Flaring Device. 

W. “Hydrocarbon Flaring Device” or “HC Flaring Device” shall mean, a flare device

used to safely control (through combustion) any excess volume of a refinery-generated gas other

than Acid Gas and/or Sour Water Stripper Off Gas and/or Tail Gas. The HC Flaring Devices

currently in service at the Covered Refineries are identified in Appendix B to the Consent

Decree. To the extent that, during the duration of the Consent Decree, any Covered Refinery

utilizes HC Flaring Devices other than those specified in Appendix B for the purpose of

combusting any excess of a refinery-generated gas other than Acid Gas and/or Sour Water

Stripper Gas, those HC Flaring Devices shall be covered under this Consent Decree.

X. “Hydrocarbon Flaring Incident” or “HC Flaring Incident” shall mean the continuous

or intermittent flaring of refinery-generated gases, except for Acid Gas or Sour Water Stripper

Gas or Tail Gas, at a Hydrocarbon Flaring Device that results in the emission of sulfur dioxide

equal to, or greater than five hundred (500) pounds in a 24-hour period; provided, however, that

if five-hundred (500) pounds or more of sulfur dioxide have been emitted in a twenty-four (24)

hour period and Flaring continues into subsequent, contiguous, non-overlapping twenty-four

(24) hour period(s), each period of which results in emissions equal to, or in excess of

five-hundred (500) pounds of sulfur dioxide, then only one HC Flaring Incident shall have
13

occurred. Subsequent, contiguous, non-overlapping periods are measured from the initial

commencement of Flaring within the HC Flaring Incident.

Y. “Lovington Refinery” shall mean the refinery owned and operated by Navajo in

Lovington, New Mexico.

Z. “Low NOx Combustion Promotor” shall mean a catalyst that is added to a FCCU or

an RCCU that minimizes NOx emissions while maintaining its effectiveness as a combustion

promotor.

AA. “Malfunction” shall mean, as specified in 40 C.F.R. Part 60.2, “any sudden,

infrequent, and not reasonably preventable failure of air pollution control equipment, process

equipment, or a process to operate in a normal or usual manner. Failures that are caused in part

by poor maintenance or careless operation are not malfunctions.”

BB. “Montana DEQ” shall mean the Montana Department of Environmental Quality and

any successor departments or agencies of the State of Montana.

CC. “Montana Refining” shall mean the Montana Refining Company, its successors and

assigns, and its officers, directors, and employees in their capacities as such.

DD. “Navajo” shall mean the Navajo Refining Company, L.P., its successors and

assigns, and its officers, directors, and employees in their capacities as such.

EE. “NMED” shall mean the New Mexico Environment Department and any successor

departments or agencies of the State of New Mexico.

FF. “Next Generation Ultra-Low NOx Burners” or “Next Generation ULNBs” shall

mean those burners new to the market that are designed to achieve a NOx emission rate of 0.012

to 0.020 lb/mmBTU HHV when firing natural gas at 3% stack oxygen at full design load without

air preheat.
14

GG. “NOx” shall mean nitrogen oxides.

HH. “NOx Additives” shall mean Low NOx Combustion Promotors and NOx Reducing

Catalyst Additives.

II. “NOx Control Technology” shall mean Next Generation ULNBs or Alternative NOx

Control Technology.

JJ. “NOx Reducing Catalyst Additive” shall mean a catalyst additive that is introduced to

an FCCU or an RCCU to reduce NOx emissions through reduction or controlled oxidation of

intermediates.

KK. “Paragraph” shall mean a portion of this Consent Decree identified by an arabic

numeral. 

LL. “PM” shall mean particulate matter.

MM. "Parties" shall mean the United States, the Plaintiff-Intervenors, Navajo, and

Montana Refining.

NN. “Plaintiff-Intervenors” shall mean the State of New Mexico and the State of

Montana.

OO. “Pollutant Reducing Catalyst Additive” shall mean either a NOx Reducing Catalyst

Additive or a SO2 Reducing Catalyst Additive.

PP. “Root Cause” shall mean the primary cause(s) of an AG Flaring Incident(s),

Hydrocarbon Flaring Incident, or a Tail Gas Incident(s) as determined through a process of

investigation

QQ. “Scheduled Maintenance” shall mean any shutdown of any emission unit or control

equipment that Navajo or Montana Refining schedules at least fourteen (14) days in advance of

the shutdown for the purpose of undertaking maintenance of such unit or control equipment.
15

RR. “Shutdown” shall mean the cessation of operation of equipment for any purpose.

SS. “Sour Water Stripper Gas” or “SWS Gas” shall mean the gas produced by the

process of stripping refinery sour water.

TT. “SO2 Reducing Catalyst Additive” shall mean a catalyst additive that is introduced to

an FCCU or an RCCU to reduce SO2 emissions by reduction and adsorption.

UU. “Startup” shall mean the setting in operation of equipment for any purpose.

VV. “SO2" shall mean sulfur dioxide.

WW. “Sulfur Recovery Plant” or “SRP” shall mean a process unit that recovers sulfur

from hydrogen sulfide by a vapor phase catalytic reaction of sulfur dioxide and hydrogen sulfide.

XX. “Tail Gas Unit” or “TGU” shall mean a control system utilizing a technology for

reducing emissions of sulfur compounds from a Sulfur Recovery Plant.

YY. “Tail Gas Incident” shall mean, for the purpose of this Consent Decree, combustion

of Tail Gas that either is:

i. Combusted in a flare and results in 500 pounds or more of SO2 emissions in any

24 hour period ; or

ii. Combusted in a thermal incinerator and results in excess emissions of 500 pounds

or more of SO2 emissions in any 24-hour period. Only those time periods which

are in excess of a SO2 concentration of 250 ppm (rolling twelve-hour average)

shall be used to determine the amount of excess SO2 emissions from the

incinerator.

Navajo and Montana Refining shall use engineering judgment and/or other monitoring data

during periods in which the SO2 continuous emission analyzer has exceeded the range of the

instrument or is out of service.
16

ZZ. “Total Catalyst” shall mean all forms of catalyst added to the FCCU, including but

not limited to base catalyst and equilibrium catalyst, but excluding Pollutant Reducing Catalyst

Additive.

AAA. “Torch Oil” shall mean FCCU feedstock or light cycle oil that is combusted in the

FCC regenerator to assist in starting up or restarting the FCCU.

BBB. “Upstream Process Units” shall mean all amine contactors, amine scrubbers, and

sour water strippers at the Covered Refineries, as well as all process units at these refineries that

produce gaseous or aqueous waste streams that are processed at amine contactors, amine

scrubbers, or sour water strippers.

CCC. “Weight % Pollutant Reducing Catalyst Additive Rate” shall mean:

Amount of Pollutant Reducing Catalyst

Additive in Pounds per Day 

Amount of Total Catalyst added x 100%

in Pounds per Day

V. AFFIRMATIVE RELIEF/ENVIRONMENTAL PROJECTS

11. NOx Emissions Reductions from FCCUs. 

A. Summary. Navajo and Montana Refining shall implement a program to reduce NOx

emissions from Fluid Catalytic Cracking Units (“FCCUs”) at the Artesia Refinery (“Artesia

FCCU”) and the Great Falls Refinery (“Great Falls FCCU”) by the use of NOx Reducing

Catalyst Additives and Low NOx Combustion Promotors at each of these FCCUs. Navajo and

Montana Refining shall incorporate lower NOx emission limits into permits and will demonstrate

future compliance with the lower emission limits through the use of CEMS.

B. Optimization Period for Navajo.
17

i. Overview of Optimization Period for Navajo. In order to establish lower FCCU

NOx emission limits at the Artesia FCCU, there shall be a NOx Reducing Catalyst Additive

Optimization Period (“Optimization Period”) and a NOx Reducing Catalyst Additive

Demonstration Period (“Demonstration Period”). During the Optimization Period, Navajo shall,

in the following order: (1) establish an optimized Low NOx Combustion Promotor addition rate

(“Optimized Addition Rate”) for use during the Demonstration Period; (2) run a series of

short-term trials on all commercially-available NOx Reducing Catalyst Additives, up to a

maximum of four; (3) select, with EPA approval, an EPA-Approved NOx Reducing Catalyst

Additive to be used during the Demonstration Period; and (4) establish an Optimized Addition

Rate for the EPA-Approved NOx Reducing Catalyst Additive to be used during the

Demonstration Period.

ii. Commencement of the Optimization Period. The Optimization Period at the

Artesia FCCU will commence by no later June 30, 2004.

iii. Protocol for the Optimization Period. By no later than 60 days prior to the

commencement of the Optimization Period, Navajo shall submit to EPA and the NMED a

protocol for the Optimization Period that describes, at a minimum, the methods that Navajo will

use to calculate control effectiveness (pounds NOx reduced per pound of additive), cost

effectiveness (dollars per ton of NOx reduced), baseline emissions, and percent additive added.

iv. Baseline Data. By no later than 30 days after the commencement of the

Optimization Period, Navajo shall submit to EPA and NMED baseline data from the period

between January 1, 2004, through June 30, 2004, for the Artesia FCCU that shall include, at a

minimum, the following data on a daily average basis:

a. Regenerator flue gas temperature;
18

b. Coke burn rate;

c. FCCU feed rate;

d. FCCU feed API gravity;

e. Percentage of each type of FCCU feed component (i.e. atmospheric gas oil,

vacuum gas oil, atmospheric tower bottoms, vacuum tower bottoms, etc.);

f. Percentage by volume of the FCCU feed that is hydrotreated;

g. Total Catalyst addition rate;
19

h. NOx Reducing Catalyst Additive, conventional combustion promotor addition

rates, and/or Low NOx Combustion Promotor addition rates; and 

i. Hourly and daily SO2, NOx, CO and O2 concentrations.

Commencing on January 2, 2004, Navajo shall also monitor and record, for a period of 30 days,

the daily FCCU feed nitrogen content. If, after 30 days, the variability of the feed nitrogen

content is less than one standard deviation from the mean, then Navajo may commence

monitoring and recording the FCCU feed nitrogen content through daily sampling composited on

a weekly basis for the remainder of the baseline period.

v. Determining the Optimized Low NOx Combustion Promotor Addition Rate.

Navajo shall comply with Section II of Appendix D in order to establish an Optimized Low NOx

Combustion Promotor Addition Rate. By no later than 60 days prior to the commencement of

the Optimization Period, Navajo shall notify EPA and the NMED in writing of which Low NOx

Combustion Promotor it intends to use in the Optimization Period. During the 60 days prior to

the commencement of the Optimization Period, Navajo will undertake the first step in the

process of determining an Optimized Addition Rate for the Low NOx Combustion Promotor by

reducing historical usage of conventional combustion promotor to the point that the addition rate

of the conventional combustion promotor is the minimum necessary to retain effectiveness. 

Thereafter, at the commencement of the Optimization Period, Navajo will replace its

conventional combustion promotor with Low NOx Combustion Promotor in accordance with the

protocol set forth in Section II of Appendix D, and shall comply with the terms of Section II of

Appendix D until the Optimized Low NOx Combustion Promotor Addition Rate is established.
20

vi. Selecting the NOx Reducing Catalyst Additive to be Used During the

Optimization Period. The objective of this Paragraph 11.B.vi is to select the best-performing,

commercially-available NOx Reducing Catalyst Additive for the Artesia FCCU.

a. Identification of Commercially-Available Products. By no later than 60 days before

the commencement of the Optimization Period, Navajo shall notify EPA in writing of all of the

NOx Reducing Catalyst Additives that are commercially-available for use in the Artesia FCCU. 

With this notification, Navajo shall submit to EPA for approval the identity of all

commercially-available NOx Reducing Catalyst Additives, up to a maximum of four, that Navajo

proposes to use for the short-term trials set forth in Paragraph 11.B.vi.b. A copy of this

notification shall be submitted to the NMED. Unless, within 15 days prior to beginning the trials

of the potential NOx Reducing Catalyst Additives, EPA objects to one or more of the products

identified, Navajo shall commence the short-term trial period. If EPA objects to any of the

proposed products, EPA and Navajo shall confer until agreement is reached on the identity of the

products to be used during the trial period. The NOx Reducing Catalyst Additives selected for

the trial runs shall be called the “EPA-Approved, Potential NOx Reducing Catalyst Additives.”

b. Short-Term Trials of Each EPA-Approved, Potential NOx Reducing Catalyst

Additive. Navajo shall add, on a trial basis for a period of two weeks, each EPA-Approved,

Potential NOx Reducing Catalyst Additive to the Artesia FCCU. Navajo shall commence the

trial runs of each EPA-Approved, Potential NOx Reducing Catalyst Additive immediately after

establishing, pursuant to Paragraph 11.B.v., the Optimized Low NOx Combustion Promotor

Addition Rate. After completion of all two-week trial periods, Navajo shall submit to EPA for

approval a report that sets forth the NOx Reducing Catalyst Additive that Navajo proposes to use
21

during the Demonstration Period based on performance capabilities. This report also shall set

forth the reasons for this selection. A copy of this report shall be submitted to the NMED.

c. Selection of the EPA-Approved NOx Reducing Catalyst Additive. EPA may approve

the NOx Reducing Catalyst Additive that Navajo proposes to use or may require Navajo to use a

different product. The NOx Reducing Catalyst Additive selected after the trials occur and after

EPA approves the final selection shall be called the “EPA-Approved NOx Reducing Catalyst

Additive.” Disputes involving the selection of the EPA-Approved NOx Reducing Catalyst

Additive shall be resolved in accordance with the dispute resolution provisions of the Consent

Decree.

vii. Determining the Optimized NOx Reducing Catalyst Additive Addition Rate.

After selection of an EPA-Approved NOx Reducing Catalyst Additive, Navajo shall comply with

Section III of Appendix D in order to establish an Optimized Addition Rate for use during the

Demonstration Period.

C. Optimization Period for Montana Refining.

i. Overview of the Optimization Period for Montana Refining. In order to establish

lower FCCU NOx emission limits at the Great Falls FCCU, there shall be an Optimization

Period and a Demonstration Period. During the Optimization Period, Montana Refining shall:

(1) determine whether the conversion from a conventional combustion promotor to a Low NOx

Combustion Promotor at the Optimized Addition Rate set forth herein will be effective in

continuing to promote combustion; (2) run short-term trials on two NOx Reducing Catalyst

Additives to identify the best-performing product; and (3) select, with EPA-Approval, an

EPA-Approved NOx Reducing Catalyst Additive to be used during the Demonstration Period.
22

ii. Commencement of the Optimization Period. The Optimization Period at the Great

Falls FCCU will commence no later than 18 months after the Lodging of the Consent Decree.

iii. Optimized Low NOx Combustion Promotor Addition Rate. By no later than 60

days prior to the commencement of the Optimization Period, Montana Refining shall notify EPA

and the Montana DEQ in writing of which Low NOx Combustion Promotor Montana Refining

intends to use in the Optimization Period, and the method and frequency of addition. At the

commencement of the Optimization Period, Montana Refining shall replace its conventional

combustion promotor with Low NOx Combustion Promotor at a rate and frequency of addition

that is the functional equivalent of the average rate of its use of conventional combustion

promotor in the preceding three months. This functionally-equivalent rate shall be the Optimized

Low NOx Combustion Promotor Addition Rate. During the Optimization Period, Montana

Refining shall determine whether, at the Optimized Addition Rate, the Low NOx Combustion

Promotor is effective by evaluating: (1) whether afterburn is controlled and regenerator

temperature and combustion levels are adequately maintained; and (2) whether temperature

excursions are brought under control adequately. If the Low NOx Combustion Promotor is not

effective, Montana Refining shall not be required to use Low NOx Combustion Promotor during

the Demonstration Period.

iv. Selection of the NOx Reducing Catalyst Additive to be Used During the

Optimization Period. The objective of this provision is to select the best-performing,

commercially-available NOx Reducing Catalyst Additive for the Great Falls FCCU.

a. Identification of Commercially-Available Products. By no later than 60 days before

the commencement of the Optimization Period, Montana Refining shall notify EPA and the

Montana DEQ in writing of two commercially-available NOx Reducing Catalyst Additives that
23

Montana Refining proposes to use for the short-term trials set forth in Paragraph 11.C.iv.b.

Unless, within 15 days prior to beginning the trial of the potential NOx Reducing Catalyst

Additives, EPA objects to one or more of the products identified, Montana Refining shall

commence the short-term trial period. If EPA objects to any of the proposed products, EPA and

Montana Refining shall confer until agreement is reached on the identity of the products to be

used during the trial period. The NOx Reducing Catalyst Additives selected for trial runs shall

be called the “EPA-Approved, Potential NOx Reducing Catalyst Additives.”

b. Short-Term Trials of Each EPA-Approved, Potential NOx Reducing Catalyst

Additive. Montana Refining shall add, on a trial basis for a period of two weeks, each

EPA-Approved, Potential NOx Reducing Catalyst Additive to the Great Falls FCCU. Montana

Refining shall commence the trial runs of each EPA-Approved, Potential NOx Reducing Catalyst

Additive immediately after determining, pursuant to Paragraph 11.C.iii., whether Low NOx

Combustion Promotor is effective. After completion of the two-week trial periods, Montana

Refining shall submit to EPA for approval a report that sets forth the NOx Reducing Catalyst

Additive that Montana Refining proposes to use during the Demonstration Period based on

performance capabilities. This report also shall set forth the reasons for this selection. A copy of

this report shall be submitted to the Montana DEQ.

c. Selection of the EPA-Approved NOx Reducing Catalyst Additive. EPA may approve

the NOx Reducing Catalyst Additive that Montana Refining proposes to use or may require

Montana Refining to use a different product. The NOx Reducing Catalyst Additive selected after

the trials occur and after EPA approves the final selection shall be called the “EPA-Approved

NOx Reducing Catalyst Additive.” Disputes involving the selection of the EPA-Approved NOx
24

Reducing Catalyst Additive shall be resolved in accordance with the dispute resolution

provisions of the Consent Decree.

v. Optimized NOx Reducing Catalyst Additive Addition Rate. The Optimized

Addition Rate of the EPA-Approved NOx Reducing Catalyst Additive to be used during the

Demonstration Period at the Great Falls FCCU shall be 2.0 Weight % NOx Reducing Catalyst

Additive.

D. Demonstration Period for Navajo and Montana Refining.

i. Commencement of NOx Additive Performance Demonstration. Navajo and

Montana Refining will demonstrate the performance of the EPA-Approved NOx Reducing

Catalyst Additive and Low NOx Combustion Promotor (collectively, “NOx Additives”) over a

twelve-month period to yield the lowest NOx concentration feasible from the FCCUs at the

Optimized NOx Reducing Catalyst Additive Addition Rate and the Optimized Low NOx

Combustion Promotor Addition Rate (collectively “Optimized NOx Additive Addition Rates”). 

During the Demonstration Period, Navajo and Montana Refining will add NOx Additives at the

Optimized NOx Additive Addition Rates and in a manner that minimizes NOx emissions. 

Navajo will commence the Demonstration Period by no later than March 31, 2005. Montana

Refining will commence the Demonstration Period by no later than 24 months after the Date of

Lodging of this Consent Decree. The commencement of these Demonstration Periods may be

delayed if Navajo and/or Montana Refining seeks in writing, and EPA approves in writing,

additional time for selecting an EPA-Approved NOx Reducing Catalyst Additive or determining

the Optimized NOx Additive Addition Rates.

ii. Notification of Optimized NOx Additive Addition Rate and Compliance with

Appendix D. By no later than 30 days prior to beginning the Demonstration Period: (i) Navajo
25

will notify EPA and the NMED of the Optimized NOx Additive Addition Rates for the Artesia

FCCU with an explanation and supporting data that demonstrates that the requirements of

Appendix D have been met in establishing the Optimized NOx Additive Addition Rates; and

(ii) Montana Refining will notify EPA and the Montana DEQ about whether the Low NOx

Combustion Promotor was effective, and if not, an explanation and supporting data that

demonstrates that it was ineffective.

iii. Measuring NOx and O2. During the Demonstration Period, Navajo and Montana

Refining will determine the NOx and O2 concentrations at the point of emission to the

atmosphere by CEMS.

iv. NOx Additive Performance Demonstration Report (“NOx Additive

Demonstration Report”). No later than 60 days after the completion of the Demonstration

Period, Navajo and Montana Refining will report the results to the Applicable Federal and State

Agencies (“NOx Additive Demonstration Report”). The NOx Additive Demonstration Report

shall include, at a minimum, the NOx and O2 CEMS data recorded during the twelve month

Demonstration Period and each of the parameters required to be reported in Paragraph 11.B.iv,

except for the daily FCCU feed nitrogen content, on a daily average basis for the twelve month

Demonstration Period.

E. Establishing FCCU NOx Emission Limits.

i. Navajo and Montana Refining NOx Emission Limits Proposals. In each NOx

Additive Demonstration Report, Navajo and Montana Refining shall propose, for the applicable

FCCU, a concentration-based (ppmvd) NOx emission limit based on 3-hour rolling and 365-day

rolling averages, corrected to 0% oxygen. Navajo and Montana Refining shall comply with the

emission limits they each propose beginning immediately upon submission of the NOx Additive
26

Demonstration Report. Navajo and Montana Refining shall continue to comply with these limits

unless and until they are required to comply with the emissions limits set by EPA pursuant to

Paragraph 11.E.ii. Under no circumstances shall this emission limit for the Artesia FCCU be

greater than a concentration-based limit that would be equivalent to 34.9 lb/hr.

ii. EPA’s NOx Emission Limits. EPA will use the data collected about each FCCU

during the baseline period, the Optimization Period, and the Demonstration Period, as well as all

other available and relevant information, to establish limits for NOx emissions from the Artesia

and Great Falls FCCUs. EPA may establish NOx concentration-based emission limits based on

3-hour rolling and 365-day rolling averages, each corrected to 0% oxygen. EPA will determine

the limits based on: (i) the level of performance during the baseline, Optimization and

Demonstration periods; (ii) a reasonable certainty of compliance; and (iii) any other available and

relevant information. Under no circumstances shall this emission limit for the Artesia FCCU be

greater than a concentration-based limit that would be equivalent to 34.9 lb/hr. EPA will notify

Navajo and Montana Refining of its determination of the concentration-based NOx emissions

limit and averaging times for each FCCU. Navajo and Montana Refining shall immediately (or

within thirty (30) days, if EPA’s limit is more stringent than the limit proposed by Navajo or

Montana Refining) operate each FCCU so as to comply with the EPA-established emission

limits. Disputes regarding the appropriate emission limits shall be resolved in accordance with

the dispute resolution provisions of this Decree; provided however, that during the period of

dispute resolution, Navajo and Montana Refining shall comply with the EPA-established limits.

F. Demonstrating Compliance with EPA-Established FCCU NOx Emission Limits. 

By no later than December 31, 2003, for Navajo and no later than 12 months from the Date of

Lodging for Montana Refining, Navajo and Montana Refining shall install and use a NOx and O2
27

CEMS to monitor performance of each FCCU during the baseline, Optimization, and

Demonstration periods, and to report compliance with the terms and conditions of this Consent

Decree. Navajo and Montana Refining shall make CEMS and process data available to the

Applicable Federal and State Agencies upon demand as soon as practicable. Navajo and

Montana Refining shall install, certify, calibrate, maintain, and operate all CEMS required by this

Consent Decree in accordance with the requirements of 40 C.F.R. §§ 60.11, 60.13 and Part 60

Appendix A, and the applicable performance specification test of 40 C.F.R. Part 60 Appendices

B and F. These CEMS will be used to demonstrate compliance with emission limits.

G. Hydrotreater Outages. The 3-hour FCCU NOx emission limits established pursuant

to this Paragraph 11 shall not apply during periods of hydrotreater outages at the Artesia and

Great Falls Refineries, provided that Navajo and Montana Refining are maintaining and

operating their FCCUs (including associated air pollution control equipment) in a manner

consistent with good air pollution control practices for minimizing emissions in accordance with

an EPA-approved good air pollution control practices plan. No later than one hundred and eighty

(180) days after the Date of Lodging of this Consent Decree, Navajo and Montana Refining shall

submit to EPA for approval a plan to minimize NOx emissions from their FCCUs (including

associated air pollution control equipment) during hydrotreater outages. Copies of this plan shall

be provided to the Applicable State Agencies. Navajo and Montana Refining shall comply with

the plan at all times, including periods of startup, shutdown, and malfunction of the hydrotreater. 

Modifications to the plan shall be summarized in an annual submission to the Applicable Federal

and State Agencies.

12. SO2 Emissions Reductions from FCCUs.
28

A. Summary. Navajo and Montana Refining shall implement a program to reduce SO2

emissions from their FCCUs by the installation and operation of one new Wet Gas Scrubber

(“WGS”) at the Artesia FCCU and by the use of SO2 Reducing Catalyst Additives at the Great

Falls FCCU. Navajo and Montana Refining shall incorporate lower SO2 emission limits into

permits and will demonstrate future compliance with the lower emissions limits through the use

of CEMS.

B. Installation and Operation of WGS on the Artesia FCCU. By no later than

December 31, 2003, Navajo shall complete installation and shall begin operation of a WGS on

emissions from the Artesia FCCU. Navajo shall design the WGS to achieve an SO2

concentration of 25 ppmvd or lower on a 365-day rolling average basis and 50 ppmvd on a 7-day

rolling average basis, each corrected to 0% oxygen. By no later than December 31, 2003, Navajo

shall comply with an SO2 concentration limit of 25 ppmvd or lower on a 365-day rolling average

basis and 50 ppmvd on a 7-day rolling average basis, each corrected to 0% oxygen.

C. Utilization of SO2 Reducing Catalyst Additive at the Great Falls FCCU.

i. Overview of Selection and Demonstration Periods. In order to establish lower

FCCU SO2 emission limits at the Great Falls FCCU, there shall be a SO2 Reducing Catalyst

Additive Selection Period (“Selection Period”) and a SO2 Reducing Catalyst Additive

Demonstration Period (“Demonstration Period”).

ii. Selection Period. By no later than 18 months after the Lodging of this Consent

Decree, Montana Refining shall notify EPA and the Montana DEQ in writing of the SO2

Reducing Catalyst Additive that Montana Refining proposes to use during the Demonstration

Period. EPA may approve the SO2 Reducing Catalyst Additive that Montana Refining proposes

to use or may require Montana Refining to use a different product. The SO2 Reducing Catalyst
29

Additive selected after EPA approval shall be called the “EPA-Approved SO2 Reducing Catalyst

Additive.” Disputes involving the selection of the EPA-Approved SO2 Reducing Catalyst

Additive shall be resolved in accordance with the dispute resolution provisions of the Consent

Decree.

iii. Demonstration Period.

a. Commencement of SO2 Reducing Catalyst Additive Performance Demonstration. 

Montana Refining will demonstrate the performance of the EPA-Approved SO2 Reducing

Catalyst Additive over a twelve-month period to yield the lowest SO2 concentration feasible from

the Great Falls FCCU at an addition rate of 8.0 Weight % SO2 Reducing Catalyst Additive

(“Optimized Addition Rate”). During the Demonstration Period, Montana Refining will add SO2

Reducing Catalyst Additives at the Optimized Addition Rate and in a manner that minimizes SO2

emissions. Montana Refining will commence the Demonstration Period by no later than 24

months after the Date of Lodging of this Consent Decree. The commencement of this

Demonstration Period may be delayed if Montana Refining seeks in writing, and EPA approves

in writing, additional time for selecting an EPA-Approved SO2 Reducing Catalyst Additive.

b. Continued Operation of Hydrotreater. Montana Refining shall not cease the operation

of its hydrotreater during the Demonstration Period, except for Malfunctions or catalyst

change-outs.

c. Measuring SO2 and O2. During the Demonstration Period, Montana Refining will

determine the SO2 and O2 concentrations at the point of emission to the atmosphere by CEMS.

d. SO2 Reducing Catalyst Additive Performance Demonstration Report (“SO2 Reducing

Catalyst Additive Demonstration Report”). No later than 60 days after the completion of the

Demonstration Period, Montana Refining will report the results to the Applicable Federal and
30

State Agencies (“SO2 Reducing Catalyst Additive Demonstration Report”). The SO2 Reducing

Catalyst Additive Demonstration Report shall include, at a minimum, the SO2 and O2 CEMS data

recorded during the twelve month Demonstration Period and the following:

(1) Regenerator flue gas temperature;

(2) Coke burn rate;

(3) FCCU feed rate;

(4) FCCU feed API gravity;

(5) FCCU feed sulfur content;

(6) Percentage of each type of FCCU feed component (i.e. atmospheric gas oil,

vacuum gas oil, atmospheric tower bottoms, vacuum tower bottoms, etc.);

(7) Percentage by volume of the FCCU feed that is hydrotreated;

(8) Total Catalyst addition rate;

(9) SO2 Reducing Catalyst Additive addition rates; and 

(10) Hourly and daily SO2, NOx, CO and O2 concentrations.
31

iv. Establishing FCCU SO2 Emission Limits at the Great Falls FCCU.

a. Montana Refining SO2 Emission Limits Proposals. In the SO2 Reducing Catalyst

Additive Demonstration Report, Montana Refining shall propose, for the Great Falls FCCU, a

concentration-based (ppmvd) SO2 emission limit based on 7-day rolling and 365-day rolling

averages, each corrected to 0% oxygen. In proposing the 7-day rolling average limit, Montana

Refining shall not consider any emissions during the Demonstration Period in which the

hydrotreater was shut down. Montana Refining shall comply with the emission limits it proposes

beginning immediately upon submission of the SO2 Reducing Catalyst Additive Demonstration

Report. Montana Refining shall continue to comply with these limits unless and until it is

required to comply with the emissions limits set by EPA pursuant to Paragraph 12.C.iv.b.

b. EPA’s SO2 Emission Limits. EPA will use the data collected about the Great Falls

FCCU during the Demonstration Period, as well as all other available and relevant information,

to establish limits for SO2 emissions from the Great Falls FCCU. EPA may establish SO2

concentration-based emission limits based on 7-day rolling and 365-day rolling averages, each

corrected to 0% oxygen. EPA will determine the limits based on: (i) the level of performance

during the Demonstration Period; (ii) a reasonable certainty of compliance; and (iii) any other

available and relevant information. EPA will notify Montana Refining of its determination of the

concentration-based SO2 emissions limit and averaging times for the FCCU. Montana Refining

shall immediately (or within thirty (30) days, if EPA’s limit is more stringent than the limit

proposed by Montana Refining) operate its FCCU so as to comply with the EPA-established

emission limits. Disputes regarding the appropriate emission limits shall be resolved in

accordance with the dispute resolution provisions of this Decree; provided however, that during

the period of dispute resolution, Montana Refining shall comply with the EPA-established limits.
32

D. Demonstrating Compliance with FCCU SO2 Emission Limits. By no later than

December 31, 2003, for Navajo, and no later than 12 months from the Date of Lodging for

Montana Refining, Navajo and Montana Refining shall install and use a SO2 and O2 CEMS to

monitor performance of each FCCU and to report compliance with the terms and conditions of

this Consent Decree. Navajo and Montana Refining shall make CEMS and process data

available to the Applicable Federal and State Agencies upon demand as soon as practicable. 

Navajo and Montana Refining shall install, certify, calibrate, maintain, and operate all CEMS

required by this Consent Decree in accordance with the requirements of 40 C.F.R. §§ 60.11,

60.13 and Part 60 Appendix A, and the applicable performance specification test of 40 C.F.R.

Part 60 Appendices B and F. These CEMS will be used to demonstrate compliance with

emission limits.

E. Hydrotreater Outages. The 7-day FCCU SO2 emission limits established pursuant

to Paragraph 12.C.iv. shall not apply during periods of hydrotreater outages at the Great Falls

Refinery, provided that Montana Refining is maintaining and operating its FCCU (including

associated air pollution control equipment) in a manner consistent with good air pollution control

practices for minimizing emissions in accordance with an EPA-approved good air pollution

control practices plan. No later than one hundred and eighty (180) days after the Date of Lodging

of this Consent Decree, Montana Refining shall submit to EPA for approval a plan to minimize

SO2 emissions from its FCCU (including associated air pollution control equipment) during

hydrotreater outages. Copies of this plan shall be provided to the Montana DEQ. Montana

Refining shall comply with the plan at all times, including periods of startup, shutdown, and

malfunction of the hydrotreater. Modifications to the plan shall be summarized in an annual

submission to EPA and the Montana DEQ.
33

13. PM Emissions Reductions from FCCUs.

A. General. Navajo shall implement a program to reduce particulate matter (“PM”)

emissions from the Artesia FCCU by the installation and operation of one new WGS. Montana

Refining shall install and operate a third stage separator (“TSS”) or control technology equivalent

in PM control effectiveness at the Great Falls FCCU if, during the life of this Consent Decree,

PM emissions are greater than 15 pounds per hour.

B. Installation and Operation of WGS on the Artesia FCCU. By no later than

December 31, 2003, Navajo shall complete installation and shall begin operation of a WGS on

emissions from its FCCU. Navajo shall design the WGS to achieve an emission limit of 1.0

pound PM per 1000 pounds of coke burned on a 3-hour average basis. By no later than

December 31, 2003, Navajo shall comply with an emission limit of 1.0 pound PM per 1000

pounds of coke burned on a 3-hour average basis.

C. Demonstrating and Complying with a PM Limit at the Great Falls FCCU. For

PM emissions from its FCCU, Montana Refining shall either:

(a) Demonstrate compliance with an emission limit of 15.0 pounds PM per

hour by conducting a 3-hour performance test representative of normal

operating conditions for PM emissions by December 31 of each calendar

year beginning with December 31, 2001; provided however, that if any

performance test undertaken pursuant to this Paragraph 13.C.(a) is not

representative of normal operating conditions, Montana Refining shall

conduct a subsequent performance test representative of normal operating

conditions by no later than 90 days after the test that was not

representative; or

(b) If, during the life of this Consent Decree, any performance test

representative of normal operating conditions undertaken pursuant to

Paragraph 13.C.(a) fails to demonstrate compliance with a 15.0 lb/hr PM

limit, Montana Refining shall complete installation and begin operation of

a TSS or control technology equivalent in PM control effectiveness by no

later than 24 months from the date of the performance test that

demonstrated non-compliance. Thereafter, a PM limit for the Great Falls
34

FCCU shall be established as the higher of: (i) an emission limit of 15.0

pounds PM per hour demonstrated by conducting, by no later than 60 days

after the commencement of the operation of a TSS or control technology

equivalent in PM control effectiveness, a 3-hour performance test

representative of normal operating conditions for PM emissions; or (ii) an

emission limit proposed by Montana Refining, by no later than 150 days

after the commencement of the operation of a TSS or control technology

equivalent in PM control effectiveness, and thereafter established by EPA,

based on the actual performance of the TSS or control technology

equivalent in PM control effectiveness. Commencing in the first calendar

year after the PM limit is established, Montana Refining shall conduct a

3-hour performance test representative of normal operating conditions for

PM emissions by December 31 of each calendar year to demonstrate

compliance. Nothing in this Paragraph 13.C.(b) shall require Montana

Refining to install a TSS or control technology equivalent in PM control

effectiveness if: (i) the cost effectiveness of controlling PM emissions

below 15 lb/hr is greater than $10,000 (annualized capital cost plus annual

operating costs) per ton of PM removed; and (ii) Montana Refining

submits a report to EPA and the Montana DEQ that establishes the cost

ineffectiveness; and (iii) EPA and the Montana DEQ agree with Montana

Refining regarding the cost ineffectiveness. Disputes arising under this

Paragraph 13.C.(b) shall be resolved in accordance with the dispute

resolution provisions of this Decree.

Montana Refining shall submit the results of the annual PM emissions compliance demonstration

to EPA and the Montana DEQ. If a TSS or control technology equivalent in PM control

effectiveness is required pursuant to this Paragraph 13.C, then by no later than sixty (60) days

after the commencement of the operation of a TSS or control technology equivalent in PM

control effectiveness, Montana Refining shall submit a certification of the commencement of this

operation to EPA and the Montana DEQ.
35

14. CO Emissions Reductions from FCCUs.

A. Summary. Navajo and Montana Refining shall implement a program to reduce CO

emissions from the Artesia and Great Falls FCCUs by the use of full combustion.

B. Emissions Limits. By no later than December 31, 2003, for Navajo, and by no later

than twelve months from the Date of Lodging for Montana Refining, the Artesia FCCU and the

Great Falls FCCU shall meet an emission limit of 500 ppmvd CO corrected to 0% O2 on a 1-hour

average basis and 100 ppmvd CO corrected to 0% O2 on a 365-day rolling average basis.

C. Demonstrating Compliance with Emission Limits. By no later than December 31,

2003, for Navajo, and by no later than 12 months from the Date of Lodging for Montana

Refining, Navajo and Montana Refining shall use a CO and O2 CEMS to monitor compliance of

each FCCU with the terms and conditions of this Consent Decree. Navajo and Montana Refining

shall make CEMS and process data available to the Applicable Federal and State Agencies upon

demand as soon as practicable. Navajo and Montana Refining shall install, certify, calibrate,

maintain, and operate all CEMS required by this Consent Decree in accordance with the

requirements of 40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A and the applicable

performance specification test of 40 C.F.R. Part 50 Appendices B and F. These CEMS will be

used to demonstrate compliance with emission limits.

15. NSPS Applicability of FCCU Regenerators.

The FCCU Regenerators at the Artesia Refinery and the Great Falls Refinery shall be

affected facilities, as that term is used in the Standards of Performance for New Stationary

Sources (“NSPS”), 40 C.F.R. Part 60, and shall be subject to and comply with the requirements

of NSPS Subparts A and J for each of the following pollutants by the following dates:

Artesia FCCU SO2 December 31, 2003
36

PM December 31, 2003

CO December 31, 2003

Opacity December 31, 2003

Great Falls FCCU SO2 36 Months from the Date of Lodging

CO 12 Months from the Date of Lodging

16. NOx Emissions Reductions from Heaters and Boilers.

A. Program Summary. Navajo will implement an eight-year program to reduce NOx

emissions from the heaters and boilers listed in Appendix C (“Controlled Heaters and Boilers”)

by installing Next Generation Ultra Low-NOx Burners (“Next Generation ULNBs”) or

Alternative NOx Control Technology, and demonstrating continuous compliance with lower

emission limits through the use of source testing, CEMS, and/or parametric monitoring. 

B. Installation of NOx Control Technology.

i. Next Generation ULNBs. Navajo shall install Next Generation ULNBs for all

Controlled Heaters and Boilers listed in Appendix C, except for Artesia Boilers B-7 and B-8,

pursuant to the schedule set forth in Appendix C. Navajo will install the new burners to achieve

the lowest possible emissions of NOx.

ii. Artesia Boilers B-7 and B-8. Navajo shall design and install an Alternative NOx

Control Technology that achieves a NOx emission rate of less than 0.06 lb/MMBtu, for Artesia

Boiler B-7 by no later than December 31, 2002, and for Artesia Boiler B-8 by no later than

December 31, 2003.

C. Testing and Monitoring NOx Emissions from Controlled Heaters and Boilers. 

Navajo shall monitor the Controlled Heaters and Boilers to meet the requirements of

Paragraph 16.B as follows:

i. For heaters and boilers with a heat input capacity greater than 150 mmBTU/hr

(HHV), Navajo shall install or continue to operate CEMS to measure NOx and O2
37

by no later than the date of the installation of the applicable NOx Control

Technology on the heater or boiler. Navajo shall install, certify, calibrate,

maintain, and operate all CEMS required by this Paragraph 16 in accordance with

the requirements of 40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A and the

applicable performance specification test of 40 C.F.R. Part 50 Appendices B

and F. These CEMS will be used to demonstrate compliance with emission

limits. Navajo shall make CEMS and process data available to the Applicable

Federal and State Agencies upon demand as soon as practicable;

ii. For heaters and boilers with a heat input capacity of equal to or less than 150

mmBTU/hr (HHV) but greater than100 mmBTU/hr (HHV), Navajo shall

(a) install or continue to operate CEMS to measure NOx and O2 by no later than

the date of the installation of the applicable NOx Control Technology on the

heater or boiler; or (b) submit for EPA approval, by no later than 60 days after the

date of installation of the applicable NOx Control Technology on the heater or

boiler, a proposal for monitoring based on operating parameters, including but not

limited to, firebox temperature, air preheat temperature, heat input rate, and

combustion O2; Navajo shall evaluate the necessity of using firebox or bridgewall

temperatures and additional operating parameters and agrees to use such

parameters as a means of monitoring performance where Navajo and EPA

mutually-agree to their effectiveness; and

iii. For heaters and boilers with a heat input capacity of equal to or less than 100

mmBTU/hr (HHV), Navajo shall, by no later than 60 days after the date of

installation of the applicable NOx Control Technology, conduct an initial

performance test. The results of this test shall be reported based upon the average

of three (3) one hour testing periods and shall be used to develop representative

operating parameters for each unit, which will be used as indicators of

compliance.

D. Establishing NOx Permit Limits for Heaters and Boilers. Within 120 days after

the start-up of the operation of any NOx Control Technology required by this Paragraph 16,

Navajo shall submit a permit application to the NMED in which Navajo proposes NOx emission

limits in lb/mmBtu on a 3-hour average basis. The proposed permit limits shall be based on

actual performance as demonstrated by CEMS and performance tests, and shall be low enough to

ensure proper operation of the NOx Control Technology and high enough to provide a reasonable

certainty of compliance.
38

E. Recordkeeping and Reporting. Commencing in 2002, Navajo shall submit a report

to EPA and the NMED on December 31 of each calendar year about the progress of installation

of NOx Control Technology required by this Paragraph 16 and other requirements of this

Paragraph. This report shall contain:

(i) A list of all Controlled Heaters and Boilers on which NOx Control

Technology was installed;

(ii) The type of NOx Control Technology that was installed on each heater and

boiler with a detailed description of the manufacturer name and model and

the designed emission factors;

(iii) The results of all performance tests conducted on each heater and boiler to

date;

(iv) A list of all heaters and boilers scheduled to have NOx Control

Technology installed during the next calendar year, the projected date of

installation, and the type of NOx Control Technology that will be installed

on those units; and

(v) An identification of proposed and established permit limits applicable to

each heater or boiler for which NOx Control Technology has been

installed pursuant to this Paragraph.

F. Heaters and Boilers at the Great Falls Refinery. Montana Refining does not

currently own or operate any heaters and boilers with a heat input capacity of 40 MMBtu/hr or

higher. If, during the life of this Consent Decree, Montana Refining commences the operation of

any heater or boiler with a heat input capacity of 40 MMBtu/hr or greater, Montana Refining

shall install and operate Next Generation ULNBs on any such heater or boiler. Thereafter,

Montana Refining shall comply with the remaining provisions of Paragraph 16.C - 16.E.
39

17. SO2 Emissions Reductions from and NSPS Applicability of Heaters and Boilers.

A. General. Navajo and Montana Refining shall undertake measures to reduce SO2

emissions from refinery heaters and boilers by restricting H2S in refinery fuel gas and by agreeing

not to continue and/or commence the burning of fuel oil except under the provisions set forth

herein.

B. NSPS Applicability of Heaters and Boilers. Upon the Date of Lodging of the

Consent Decree for Navajo, and by no later than December 31, 2006, for Montana Refining, the

heaters and boilers at the Covered Refineries shall be affected facilities, as that term is used in

40 C.F.R. Part 60, Subparts A and J, and shall be subject to and comply with the requirements of

NSPS Subparts A and J. By no later than December 31, 2006, Montana Refining shall install,

certify, calibrate, maintain and operate a fuel gas CEMS in accordance with the requirements of

40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A, and the applicable performance specification

test of 40 C.F.R. Part 60 Appendices B and F. This CEMS will be used to demonstrate

compliance with emission limits.

C. Elimination/Reduction of Fuel Oil Burning.

i. Navajo. From the Date of Lodging of this Consent Decree through termination,

Navajo shall continue not to burn Fuel Oil in any combustion unit except that:

(a) Navajo shall be permitted to burn Torch Oil in the Artesia FCCU

Regenerator during FCCU start-ups; and

(b) Navajo shall be permitted to burn Fuel Oil in combustion units after the

establishment of FCCU NOx emission limits pursuant to Paragraph 11.E.

of this Consent Decree, provided that emissions from any such combustion

units are routed through the FCCU Wet Gas Scrubber and Navajo

demonstrates, with the approval of EPA, that the NOx emission limits

established therein and the SO2 emissions limits set forth in

Paragraph 12.B. of this Consent Decree will continue to be met.
40

ii. Montana Refining. From the Date of Lodging of this Consent Decree through

termination, Montana Refining shall continue not to burn Fuel Oil in any combustion unit except

that Montana Refining shall be permitted to burn Torch Oil in the Great Falls FCCU Regenerator

during FCCU start-ups.

18. NSPS Applicability of and Compliance for Sulfur Recovery Plant.

A. NSPS Applicability of Sulfur Recovery Plant.

i. Artesia Refinery Sulfur Recovery Plant Description. Navajo owns and operates one

Sulfur Recovery Plant located at the Artesia Refinery. Montana Refining does not own or

operate any Sulfur Recovery Plants. The Sulfur Recovery Plant at the Artesia Refinery (“Artesia

SRP”) consists of two units: one with a processing capacity of 100 long tons per day (“LTD”)

and the other with a processing capacity of 40 LTD. The control device for the SRP is a single

Tail Gas Unit (“Artesia TGU”) with a processing capacity of 70 LTD. Nothing in this

Paragraph 18 shall require Navajo simultaneously to operate both units of its SRP.

ii. Artesia Sulfur Recovery Plant NSPS Applicability. Because the Artesia SRP (which

includes both units) was constructed and/or modified after October 4, 1976, the Artesia SRP is

subject to, and shall continue to comply with, the applicable provisions of 40 C.F.R. Part 60,

Subparts A and J.

B. Sulfur Pit Emissions. As of the Date of Lodging, Navajo shall continue to route all

Artesia SRP sulfur pit emissions from the Artesia SRP so that sulfur pit emissions to the

atmosphere either are eliminated or are included and monitored as part of the applicable Sulfur

Recovery Plants tail gas emissions that meet the NSPS Subpart J limit for SO2: a 12-hour rolling

average of 250 ppmvd SO2 corrected to 0% oxygen, as required by 40 C.F.R. § 60.104(a)(2).

C. Sulfur Recovery Plant Emissions Compliance.
41

i. By no later than the Date of Lodging of the Consent Decree, Navajo shall, for all

periods of operation of the Artesia SRP, comply with 40 C.F.R. § 60.104(a)(2), except during

periods of startup, shutdown or Malfunction of the Artesia SRP, or during a Malfunction of the

Artesia TGU. For the purpose of determining compliance with the Sulfur Recovery Plant

emission limits of 40 C.F.R. § 60.104(a)(2), the “start-up/shutdown” provisions set forth in

NSPS Subpart A shall apply to the Artesia SRP and not to the independent start-up or shutdown

of the Artesia TGU. However, the Malfunction exemption set forth in NSPS Subpart A (and as

defined in the Consent Decree at Paragraph 10) shall apply to both the Artesia SRP and the

Artesia TGU.

ii. As of the Date of Lodging of this Consent Decree, Navajo shall monitor all emission

points (stacks) to the atmosphere for tail gas emissions from the Artesia SRP, and shall report

excess emissions, as required by 40 C.F.R. §§ 60.7(c), 60.13, and 60.105(a)(5). During the life

of this Consent Decree, Navajo shall continue to conduct emissions monitoring from the Artesia

SRP with CEMS at all of the emission points, unless an SO2 alternative monitoring procedure

has been approved by EPA, per 40 C.F.R. § 60.13(i), for any of the emission points. The

requirement for continuous monitoring of the Artesia SRP emission points is not applicable to

the Acid Gas Flaring Devices used to flare the Acid Gas or Sour Water Stripper Gas for the

Artesia SRP.

iii. At all times, including periods of startup, shutdown, and Malfunction, Navajo shall,

to the extent practicable, operate and maintain the Artesia SRP and the Artesia TGU, and any

supplemental control devices, in accordance with Navajo’s obligation to minimize Sulfur

Recovery Plant emissions through implementation of good air pollution control practices as

required in 40 C.F.R. § 60.11(d).
42

D. Good Operation and Maintenance.

i. By no later than 270 days from the Date of Lodging of the Consent Decree, Navajo

shall, for the Artesia SRP, submit to EPA and the NMED, a summary of a plan, implemented or

to be implemented, for enhanced maintenance and operation of the Artesia SRP, the Artesia

TGU, any supplemental control devices, and the appropriate Upstream Process Units. This plan

shall be termed a Preventive Maintenance and Operation Plan (“PMO Plan”). The PMO Plan

shall be a compilation of Navajo’s approaches for exercising good air pollution control practices

for minimizing SO2 emissions at the Artesia Refinery. The PMO Plan shall provide for

continuous operation of the Artesia SRP between scheduled maintenance turnarounds with

minimization of emissions from the Artesia SRP. The PMO Plan shall include, but not be

limited to, sulfur shedding procedures, new startup and shutdown procedures, emergency

procedures and schedules to coordinate maintenance turnarounds of the Artesia SRP Claus trains,

Artesia TGU, and any supplemental control device to coincide with scheduled turnarounds of

major Upstream Process Units. The PMO Plan shall have as a goal the elimination of Acid Gas

Flaring. Navajo shall comply with the PMO Plan at all times, including periods of start up, shut

down, and Malfunction of the Artesia SRP. Modifications related to minimizing Acid Gas

Flaring and/or SO2 emissions made by Navajo to the PMO Plan shall be summarized in an

annual submission to EPA and the NMED.

ii. EPA and the NMED do not, by their review of the PMO Plan and/or by their failure to

comment on the PMO Plan, warrant or aver in any manner that any of the actions that Navajo

may take pursuant to the PMO Plan will result in compliance with the provisions of the Clean

Air Act, the New Mexico Air Quality Control Act, or their implementing regulations. 

Notwithstanding EPA’s or NMED’s review of the PMO Plan, Navajo shall remain solely
43

responsible for compliance with the Clean Air Act, the New Mexico Air Quality Control Act,

and their implementing regulations.

E. Optimization Study. Between January 1, 2004, and December 31, 2004, Navajo

shall complete an optimization study (internal or external) on the Artesia SRP and report the

results to EPA and the NMED. The optimization study shall consider:

i. A detailed evaluation of plant design and capacity, operating parameters and

efficiencies - including catalytic activity and material balances;

ii. An analysis of the composition of the Acid Gas and Sour Water Stripper Gas

resulting from the processing of crude slate actually used, or expected to be used,

in the Artesia SRP; 

iii. A thorough review of each critical piece of process equipment and 

instrumentation within each Claus train that is designed to correct deficiencies or

problems that prevent each Claus train from achieving their optimal sulfur

recovery efficiency and expanded periods of operation;

iv. Establishment of baseline data through testing and measurement of key

parameters throughout each Claus train;

v. Establishment of a thermodynamic process model of each Claus train;

vi. For any key parameters that have been determined to be at less than optimal

levels, initiation of logical, sequential, or stepwise changes designed to move such

parameters toward their optimal values;

vii. Verification through testing, analysis of continuous emission monitoring data, or

other means, of incremental and cumulative improvements in sulfur recovery

efficiency, if any;
44

viii. Establishment of new operating procedures for long term efficient operation; and 

ix. Each study shall be conducted to optimize the performance of the Claus trains in

light of the actual characteristics of the feeds to the Artesia SRP.

Navajo shall incorporate the results of the optimization study into the PMO Plan required under

Paragraph 18.D.

19. NSPS Applicability of and Compliance for Flaring Devices.

A. Identification of and NSPS Applicability for Flaring Devices. Navajo and

Montana Refining own and operate the Flaring Devices identified in Appendix B to this Consent

Decree. Consistent with the terms of this Paragraph 19 and the schedule in Appendix E, the

Flaring Devices in Appendix B shall be affected facilities, as that term is used in NSPS, 40

C.F.R. Part 60, and shall be subject to and comply with the requirements of 40 C.F.R. Part 60,

Subparts A and J for fuel gas combustion devices.

B. Compliance with the Emission Limit at 40 C.F.R. § 60.104(a)(1).

i. Continuous or Intermittent, Routinely-Generated Refinery Fuel Gases. For continuous

or intermittent, routinely-generated refinery fuel gases that are combusted in any of the Flaring

Devices identified in Appendix B, Navajo and Montana Refining shall either take the Flaring

Device that is associated with such a gas stream out of service or shall comply with the emission

limit at 40 C.F.R. § 60.104(a)(1) by the dates specified in Appendix E.

ii. Non-Routinely Generated Gases. The combustion of gases generated by the startup,

shutdown, or Malfunction of a refinery process unit or released to a Flaring Device as a result of

relief valve leakage caused by excessive pressure build-up or other emergency Malfunction shall

be exempt from the requirement to comply with 40 C.F.R. § 60.104(a)(1).
45

C. Good Air Pollution Control Practices. For all Flaring Devices identified in

Appendix B, Navajo and Montana Refining shall comply with the NSPS obligation to implement

good air pollution control practices as required by 40 C.F.R. § 60.11(d) to minimize HC and AG

Flaring Incidents.

D. Monitoring the Flaring Devices and Reporting. All Flaring Devices that Navajo or

Montana Refining keep in service to combust continuous or intermittent, routinely-generated

refinery fuel gases shall be equipped with a CEMS as required by 40 C.F.R. § 60.105(a)(4) or

with a parametric monitoring system approved by EPA as an alternative monitoring system under

40 C.F.R. § 60.13(i). Navajo and Montana Refining shall comply with the reporting

requirements of 40 C.F.R. Part 60, Subpart J, for all such Flaring Devices.

E. Utilization of the Lovington Flaring Device during a Scheduled Shutdown at

Duke Energy’s Linam Ranch Natural Gas Plant. Commencing on the Date of Lodging of this

Consent Decree and continuing through the date that the Lovington Flaring Device (FL-1001)

meets NSPS standards related to fuel gas combustion devices, Navajo shall provide written

notice to the NMED by no later than ten days prior to a scheduled shutdown at Duke Energy’s

Linam Ranch Natural Gas Plant, except that, if Navajo does not receive notice from Duke Energy

of a scheduled shutdown ten days in advance of such shutdown, then Navajo shall provide

written notice to the NMED by no later than the end of the next business day after receiving

notice from Duke Energy.

20. Control of Acid Gas Flaring Incidents and Tail Gas Incidents.

Navajo has identified the causes of AG Flaring Incidents that occurred between 1997 and

July of 2001 at the Artesia Refinery. Navajo has implemented (or is in the process of identifying

and implementing) corrective actions to minimize the number and duration of AG Flaring
46

Incidents. Navajo also agrees to implement a program to investigate the cause of future AG

Flaring Incidents, to take reasonable steps to correct the conditions that have caused or

contributed to such AG Flaring Incidents, and to minimize AG Flaring Incidents. Navajo shall

follow the procedures in this Paragraph 20 to evaluate whether future AG Flaring Incidents are

due to Malfunctions or are subject to stipulated penalties. Navajo also agrees to undertake the

investigative and evaluative procedures in this Paragraph for assessing if Tail Gas Incidents, as

described in Paragraph 20.E, are due to Malfunctions or are subject to stipulated penalties. The

procedures, as set forth below, require a root cause analysis and corrective action for all types of

AG Flaring and Tail Gas Incidents and require stipulated penalties for AG Flaring and Tail Gas

Incidents if the root causes were not due to Malfunctions. The Lovington Refinery and the Great

Falls Refinery do not flare Acid or SWS Gas to the atmosphere and do not have Tail Gas Units;

therefore, the Lovington and Great Falls Refineries have not had any AG Flaring or Tail Gas

Incidents. The provisions of this Paragraph 20 are not applicable to the Lovington and Great

Falls Refineries unless and until either of them adds a Tail Gas Unit and/or modifies their process

operations such that flaring Acid or SWS Gas to the atmosphere is possible.

A. Investigation and Reporting. No later than forty-five (45) days following the end of

an Acid Gas Flaring Incident, Navajo shall submit to EPA and the NMED a report that sets forth

the following:

i. The date and time that the Acid Gas Flaring Incident started and ended. To the

extent that the Acid Gas Flaring Incident involved multiple releases either within

a twenty-four (24) hour period or within subsequent, contiguous, non-overlapping

twenty-four (24) hour periods, Navajo shall set forth the starting and ending dates

and times of each release;

ii. An estimate of the quantity of sulfur dioxide that was emitted and the calculations

that were used to determine that quantity;
47

iii. The steps, if any, that Navajo took to limit the duration and/or quantity of sulfur

dioxide emissions associated with the Acid Gas Flaring Incident;

iv. A detailed analysis that sets forth the Root Cause and all contributing causes of

that Acid Gas Flaring Incident, to the extent determinable;

v. An analysis of the measures, if any, that are available to reduce the likelihood of a

recurrence of an Acid Gas Flaring Incident resulting from the same Root Cause or

contributing causes in the future. The analysis shall discuss the alternatives, if

any, that are available, the probable effectiveness and cost of the alternatives, and

whether or not an outside consultant should be retained to assist in the analysis. 

Possible design, operation and maintenance changes shall be evaluated. If Navajo

concludes that corrective action(s) is (are) required under Paragraph 20.B, the

report shall include a description of the action(s) and, if not already completed, a

schedule for its (their) implementation, including proposed commencement and

completion dates. If Navajo concludes that corrective action is not required under

Paragraph 20.B, the report shall explain the basis for that conclusion;

vi. A statement that: (a) specifically identifies each of the grounds for stipulated

penalties in Paragraphs 20.C.i and 20.C.ii of this Decree and describes whether or

not the Acid Gas Flaring Incident falls under any of those grounds; (b) if an Acid

Gas Flaring Incident falls under Paragraph 20.C.iii of this Decree, describes which

Paragraph (20.C.iii.a or 20.C.iii.b) applies and why; and (c) if an Acid Gas Flaring

Incident falls under either Paragraph 20.C.ii or Paragraph 20.C.iii.b, states

whether or not Navajo asserts a defense to the Flaring Incident, and if so, a

description of the defense; and

vii. To the extent that investigations of the causes and/or possible corrective actions

still are underway on the due date of the report, a statement of the anticipated date

by which a follow-up report fully conforming to the requirements of this

Paragraph 20.A.iv and 20.A.v shall be submitted; provided, however, that if

Navajo has not submitted a report or a series of reports containing the information

required to be submitted under this Paragraph within the 45 day time period set

forth in Paragraph 20.A (or such additional time as EPA may allow) after the due

date for the initial report for the Acid Gas Flaring Incident, the stipulated penalty

provisions of Paragraph 51 shall apply, but Navajo shall retain the right to dispute,

under the dispute resolution provision of this Consent Decree, any demand for

stipulated penalties that was issued as a result of Navajo’s failure to submit the

report required under this Paragraph within the time frame set forth. Nothing in

this Paragraph shall be deemed to excuse Navajo from its investigation, reporting,

and corrective action obligations under this Section for any Acid Gas Flaring

Incident which occurs after an Acid Gas Flaring Incident for which Navajo has

requested an extension of time under this Paragraph 20.B.
48

viii. To the extent that completion of the implementation of corrective action(s), if

any, is not finalized at the time of the submission of the report required under this

Paragraph, then, by no later than thirty (30) days after completion of the

implementation of corrective action(s), Navajo shall submit a report identifying

the corrective action(s) taken and the dates of commencement and completion of

implementation.

B. Corrective Action.

i. In response to any AG Flaring Incident, Navajo shall take, as expeditiously as

practicable, such interim and/or long-term corrective actions, if any, as are consistent with good

engineering practice to minimize the likelihood of a recurrence of the Root Cause and all

contributing causes of that AG Flaring Incident.

ii. If EPA does not notify Navajo in writing within thirty (30) days of receipt of the

report(s) required by Paragraph 20.A that it objects to one or more aspects of the proposed

corrective action(s), if any, and schedule(s) of implementation, if any, then that (those) action(s)

and schedule(s) shall be deemed acceptable for purposes of compliance with Paragraph 20.B.i of

this Decree. EPA does not, however, by its consent to the entry of this Consent Decree or by its

failure to object to any corrective action that Navajo may take in the future, warrant or aver in

any manner that any corrective actions in the future shall result in compliance with the provisions

of the Clean Air Act or its implementing regulations. Notwithstanding EPA’s review of any

plans, reports, corrective measures or procedures under this Paragraph 20, Navajo shall remain

solely responsible for non-compliance with the Clean Air Act and its implementing regulations. 

Nothing in this Paragraph 20 shall be construed as a waiver of EPA’s rights under the Clean Air

Act and its regulations for future violations of the Act or its regulations.

iii. If EPA does object, in whole or in part, to the proposed corrective action(s) and/or the

schedule(s) of implementation, or, where applicable, to the absence of such proposal(s) and/or
49

schedule(s), it shall notify Navajo of that fact within thirty (30) days following receipt of the

report(s) required by Paragraph 20.A above. If EPA and Navajo cannot agree on the appropriate

corrective action(s), if any, to be taken in response to a particular Acid Gas Flaring Incident,

either Party may invoke the Dispute Resolution provisions of Section XV of the Consent Decree.

iv. Nothing in Paragraph 20 shall be construed to limit the right of Navajo to take such

corrective actions as it deems necessary and appropriate immediately following an Acid Gas

Flaring Incident or in the period during preparation and review of any reports required under this

Section.

C. Stipulated Penalties. The provisions of this Paragraph 20.C shall apply to the

Artesia Refinery. The provisions of Paragraph 20.C are intended to implement the process

outlined in the logic diagram attached hereto as Appendix F to this Consent Decree. These

provisions shall be interpreted and construed, to the maximum extent feasible, to be consistent

with that Attachment. However, in the event of a conflict between the language of Paragraph 20

and Appendix F, the language of this Paragraph shall control. 

i. The stipulated penalty provisions of Paragraph 51 shall apply to any Acid Gas Flaring

Incident for which the Root Cause was one or more or the following acts, omissions, or events:

a. Error resulting from careless operation by the personnel charged with the

responsibility for the Sulfur Recovery Plant, TGU, or Upstream Process Units;

b. Failure to follow written procedures;

c. A failure of equipment that is due to a failure by Navajo to operate and maintain

that equipment in a manner consistent with good engineering practice; or

d. The following Root Causes shall not provide a basis for asserting a Malfunction 

defense unless Navajo can demonstrate to EPA that such root cause substantially

differs from these same Root Causes that were identified prior to the Lodging of

this Consent Decree:
50

(1) Shutdowns and maintenance of Compressor C110 or the FCCU wet gas

compressor at the Artesia Refinery; and

(2) Hydrocarbon carryover resulting in SRP shutdowns at the Artesia

Refinery.

Except for a force majeure event, Navajo shall have no defenses to a demand for stipulated

penalties for an Acid Gas Flaring Incident falling under this Paragraph 20.C.i.

ii. The stipulated penalty provisions of Paragraph 51 shall apply to any Acid Gas Flaring

Incident that either:

a. Results in emissions of sulfur dioxide at a rate greater than twenty (20.0) pounds

per hour continuously for three (3) consecutive hours or more; or

b. Causes the total number of Acid Gas Flaring Incidents in a rolling twelve (12)

month period to exceed five (5).

In response to a demand by the United States for stipulated penalties, the United States and

Navajo agree that Navajo shall be entitled to assert a Malfunction and/or force majeure defense

with respect to any Acid Gas Flaring Incident falling under this Paragraph 20.C.ii. In the event

that a dispute arising under this Paragraph is brought to the Court pursuant to the dispute

resolution provisions of this Consent Decree, nothing in this Paragraph is intended or shall be

construed to stop Navajo from asserting that, in addition to the Malfunction and/or force majeure

defense, the defenses of startup, shutdown, and upset are available for AG Flaring Incidents

under 40 C.F.R. § 60.104(a)(1), nor to stop the United States from asserting its view that such

defenses are not available. In the event that a Flaring Incident falls under both Paragraph 20.C.i

and Paragraph 20.C.ii, then Paragraph 20.C.i shall apply.

iii. With respect to any Acid Gas Flaring Incident other than those identified in

Paragraphs 20.C.i and 20.C.ii, the following provisions shall apply:
51

a. First Time: If the Root Cause of the Acid Gas Flaring Incident was not a

recurrence of the same Root Cause that resulted in a previous Acid Gas Flaring

Incident at that refinery that occurred since the effective date of this Decree, then:

(1) If the Root Cause of the Acid Gas Flaring Incident was sudden, infrequent,

and not reasonably preventable through the exercise of good engineering

practice, then that cause shall be designated as an agreed-upon malfunction

for purposes of reviewing subsequent Acid Gas Flaring Incidents;

(2) If the Root Cause of the Acid Gas Flaring Incident was not sudden and

infrequent, and was reasonably preventable through the exercise of good

engineering practice, then Navajo shall implement corrective action(s)

pursuant to Paragraph 20.B.i.

b. Recurrence: If the Root Cause is a recurrence of the same Root Cause that

resulted in a previous Acid Gas Flaring Incident that occurred since the Effective

Date of this Consent Decree, then Navajo shall be liable for stipulated penalties

under Paragraph 51 of the Consent Decree unless:

(1) the Flaring Incident resulted from a Malfunction; or 

(2) the Root Cause previously was designated as an agreed-upon malfunction

under Paragraph 20.C.iii.b.(1); provided however, that in the event that a

dispute arising under this Paragraph is brought to the Court pursuant to the

dispute resolution provisions of this Consent Decree, nothing in this

Paragraph is intended or shall be construed to stop Navajo from asserting

its view that, in addition to a Malfunction and/or force majeure defense,

the defenses of startup, shutdown, and upset are available for Acid Gas

Flaring Incidents under 40 C.F.R. § 60.104(a)(1), nor to stop the United

States from asserting its view that such defenses are not available; or

(3) the AG Flaring Incident had as its Root Cause the recurrence of a Root

Cause for which Navajo had previously developed, or was in the process

of developing, a corrective action plan for and for which Navajo had not

yet completed implementation.

iv. Other than for a Malfunction or force majeure, if no Acid Gas Flaring Incident and no

violation of the emission limit under Paragraph 18 occurs at the Artesia Refinery for a rolling 36

month period, then the stipulated penalty provisions of Paragraph 51 no longer apply. EPA may

elect to reinstate the stipulated penalty provision if Navajo has an Acid Gas Flaring Incident

which would otherwise be subject to stipulated penalties. EPA's decision shall not be subject to
52

dispute resolution. Once reinstated, the stipulated penalty provision shall continue for the

remaining life of this Consent Decree for the Artesia Refinery.

D. Miscellaneous.

i. Calculation of the Quantity of Sulfur Dioxide Emissions resulting from AG

Flaring. For purposes of this Consent Decree, the quantity of SO2 emissions resulting from

AG Flaring shall be calculated by the following formula:

Tons of SO2 = [FR][TD][ConcH2S][8.44 x 10-5].

The quantity of SO2 emitted shall be rounded to one decimal point. (Thus, for example,

for a calculation that results in a number equal to 10.050 tons, the quantity of SO2 emitted shall

be rounded to 10.1 tons.) For purposes of determining the occurrence of, or the total quantity of

SO2 emissions resulting from, a AG Flaring Incident that is comprised of intermittent AG

Flaring, the quantity of SO2 emitted shall be equal to the sum of the quantities of SO2 flared

during each such period of intermittent AG Flaring.

ii. Calculation of the Rate of SO2 Emissions During AG Flaring. For purposes of this

Consent Decree, the rate of SO2 emissions resulting from AG Flaring shall be expressed in terms

of pounds per hour, and shall be calculated by the following formula: 

ER = [FR][ConcH2S][0.169]. 

The emission rate shall be rounded to one decimal point. (Thus, for example, for a calculation

that results in an emission rate of 19.95 pounds of SO2 per hour, the emission rate shall be

rounded to 20.0 pounds of SO2 per hour; for a calculation that results in an emission rate of 20.05

pounds of SO2 per hour, the emission rate shall be rounded to 20.1.)

iii. Meaning of Variables and Derivation of Multipliers used in the Equations in

Paragraph 20.D.i-ii:
53

ER = Emission Rate in pounds of SO2 per hour

FR = Average Flow Rate to Flaring Device(s) during Flaring, in standard

cubic feet per hour

TD = Total Duration of Flaring in hours

ConcH2S = Average Concentration of Hydrogen Sulfide in gas during Flaring

(or immediately prior to Flaring if all gas is being flared) expressed

as a volume fraction (scf H2S/scf gas)

8.44 x 10-5 = [lb mole H2S/379 scf H2S][64 lbs SO2/lb mole H2S][Ton/2000 lbs]

0.169 = [lb mole H2S/379 scf H2S][1.0 lb mole SO2/1 lb mole H2S][64 lb

SO2/1.0 lb mole SO2]

The flow of gas to the AG Flaring Device(s) (“FR”) shall be as measured by the relevant flow

meter or reliable flow estimation parameters. Hydrogen sulfide concentration (“ConcH2S”) shall

be determined from the Sulfur Recovery Plant feed gas analyzer, from knowledge of the sulfur

content of the process gas being flared, by direct measurement by tutwiler or draeger tube

analysis or by any other method approved by EPA or the NMED. In the event that any of these

data points is unavailable or inaccurate, the missing data point(s) shall be estimated according to

best engineering judgment. The report required under Paragraph 20.A.i. shall include the data

used in the calculation and an explanation of the basis for any estimates of missing data points. 
54

E. Tail Gas Incidents. 

i. Investigation, Reporting, Corrective Action and Stipulated Penalties. For Tail Gas

Incidents, Navajo shall follow the same investigative, reporting, corrective action and assessment

of stipulated penalty procedures as those outlined in Paragraphs 20.A - 20.C for Acid Gas Flaring

Incidents. Those procedures shall be applied to TGU shutdowns, bypasses of a TGU,

unscheduled shutdowns of a Sulfur Recovery Plant, or other miscellaneous unscheduled Sulfur

Recovery Plant events which result in a Tail Gas Incident.

ii. Calculation of the Quantity of SO2 Emissions resulting from a Tail Gas Incident:

For the purposes of this Consent Decree, the quantity of SO2 emissions resulting from a Tail Gas

Incident shall be calculated by one of the following methods, based on the type of event:

a. If the Tail Gas Incident is combusted in a flare the SO2 emissions are calculated

using the methods outlined in Paragraph 20.D.; or

b. If the Tail Gas Incident is a event exceeding the 250 ppmvd (NSPS J limit), from

a monitored Sulfur Recovery Plant incinerator, then the following formula

applies:

 TDTGI 20.9 - % O2

ERTGI =  [ FRInc.]i [Conc. SO2 – 250]i [0.169 x 10-6] [ 20.9 ]i

 i = 1

Where:

ERTGI = Emissions from Tail Gas at the Sulfur Recovery Plant incinerator, SO2 lb

over a 24 hour period

TDTGI = Total Duration (number of hours) when the incinerator CEMS exceeded

250 ppmvd SO2 corrected to 0% O2 on a rolling twelve hour average, in

each 24 hour period of the Incident

i = Each hourly average

FRInc. = Incinerator Exhaust Gas Flow Rate (standard cubic feet per hour, dry

basis) (actual stack monitor data or engineering estimate based on the acid

gas feed rate to the SRP) for each hour of the Incident
55

Conc. SO2 = Each actual 12 hour rolling average SO2 concentration (CEMS data) that is

greater than 250 ppm in the incinerator exhaust gas, ppmvd corrected to

0% O2, for each hour of the Incident

% O2 = O2 concentration (CEMS data) in the incinerator exhaust gas in volume %

on dry basis for each hour of the Incident

0.169 x 10-6 = [lb mole of SO2 / 379 SO2 ] [64 lbs SO2 / lb mole SO2 ] [1 x 10-6 ]

Standard conditions = 60 degree F; 14.7 lbforce/sq.in. absolute

In the event the concentration SO2 data point is inaccurate or not available or a flow meter for

FRInc, does not exist or is inoperable, then estimates will be used based on best engineering

judgment.

21. Control of Hydrocarbon Flaring Incidents. Navajo and Montana Refining have

identified the causes of HC Flaring Incidents that occurred between 1997 and July of 2001 at

each of the Covered Refineries. Navajo and Montana Refining have implemented (or are in the

process of identifying and implementing) corrective actions to minimize the number and duration

of HC Flaring Incidents. For future Hydrocarbon Flaring Incidents, Navajo and Montana

Refining shall follow the same investigative, reporting, and corrective action procedures as those

outlined in Paragraphs 20.A - 20.B for Acid Gas Flaring Incidents; provided however, that in lieu

of analyzing possible corrective actions under Paragraph 20.A.v and taking interim and/or

long-term corrective action under Paragraph 20.B.i for a Hydrocarbon Flaring Incident

attributable to the start up or shut down of a unit that Navajo or Montana Refining has previously

analyzed under this Paragraph 21, Navajo or Montana Refining, as applicable, may identify such

prior analysis when submitting the report required under this Paragraph 21. Stipulated penalties

under either Paragraphs 20.C and 51 shall not apply to Hydrocarbon Flaring Incident(s). The

formulas at Paragraph 20.D, used for calculating the quantity and rate of sulfur dioxide emissions
56

during AG Flaring Incidents, shall be used to calculated the quantity and rate of sulfur dioxide

emissions during HC Flaring Incidents.

22. Benzene Waste NESHAP Program Enhancements. 

In addition to continuing to comply with all applicable requirements of 40 C.F.R. Part 61,

Subpart FF (“Benzene Waste NESHAP” or “Subpart FF”), Navajo and Montana Refining agree

to undertake, at each of the Covered Refineries, the measures set forth in Paragraphs 22.B

through 22.N to ensure continuing compliance with Subpart FF and to minimize or eliminate

fugitive benzene waste emissions. 

A. Current Compliance Status. As of the Date of Lodging of this Consent Decree,

Navajo and Montana Refining believe that each of the Covered Refineries has a Total Annual

Benzene (“TAB”) of less than 10 Mg/yr. Navajo and Montana Refining will review and verify

the TABs at each of the Covered Refineries consistent with the requirements of Paragraph 22.C.

B. Refinery Compliance Status Changes. If at any time from the Date of Lodging of

the Consent Decree through its termination, any of the Covered Refineries is determined to have

a TAB equal to or greater than 10 Mg/yr, Navajo or Montana Refining, as applicable, shall

comply with the compliance option set forth at 40 C.F.R. § 61.342(e) (hereinafter referred to as

the “6 BQ compliance option”).

C. One-Time Review and Verification of Each Covered Refinery’s TAB.

i. Phase One of the Review and Verification Process. By no later than 270 days from the

Date of Lodging of the Consent Decree, Navajo and Montana Refining shall complete a review

and verification of the TAB of each Covered Refinery. For each Covered Refinery, the review

and verification process shall include, but not be limited to: (i) an identification of each waste

stream that is required to be included in the Covered Refinery’s TAB (e.g., slop oil, tank water
57

draws, spent caustic, desalter rag layer dumps, desalter vessel process sampling points, other

sample wastes, maintenance wastes, and turnaround wastes); (ii) a review and identification of

the calculations and/or measurements used to determine the flows of each waste stream for the

purpose of ensuring the accuracy of the annual waste quantity for each waste stream; (iii) an

identification of the benzene concentration in each waste stream, including sampling for benzene

concentration at no less than 10 waste streams per Covered Refinery consistent with the

requirements of 40 C.F.R. § 61.355(c)(1) and (3); provided however, that previous analytical data

or documented knowledge of waste streams may be used, 40 C.F.R. § 61.355(c)(2), for streams

not sampled; and (iv) an identification of whether or not the stream is controlled consistent with

the requirements of Subpart FF. By no later than thirty (30) days following the completion of

Phase One of the review and verification process, Navajo and Montana Refining shall submit a

Benzene Waste NESHAP Compliance Review and Verification report (“BWN Compliance

Review and Verification Report”) that sets forth the results of Phase One, including but not

limited to the items identified in (i) through (iv) of this Paragraph 22.C.i. At their option, Navajo

and Montana Refining may submit one BWN Compliance Review and Verification Report that

includes the results of all Covered Refineries or may submit three separate BWN Compliance

Review and Verification Reports.

ii. Phase Two of the Review and Verification Process. Based on EPA’s review of the

BWN Compliance Review and Verification Report(s), EPA may select up to 20 additional waste

streams at each Covered Refinery for sampling for benzene concentration. Navajo and/or

Montana Refining, as applicable, will conduct the required sampling and submit the results to

EPA within ninety (90) days of receipt of EPA’s request. Navajo and/or Montana Refining, as

applicable, will use the results of this additional sampling to recalculate the TAB and to amend
58

the BWN Compliance Review and Verification Report, as needed. To the extent that EPA

requires Navajo and/or Montana Refining to re-sample a Phase One waste stream as part of this

Phase Two review, Navajo and/or Montana Refining, as applicable, may average the results of

the two sampling events. Navajo and/or Montana Refining, as applicable, shall submit an

amended BWN Compliance Review and Verification Report within ninety (90) days following

the date of the completion of the required Phase Two sampling, if Phase Two sampling is

required by EPA.

D. Implementation of Actions Necessary to Correct Non-Compliance and

Provisions for Covered Refineries where the TAB is under 1 Mg/yr.

i. Amended TAB Reports. If the results of the BWN Compliance Review and

Verification Report(s) indicate(s) that a Covered Refinery has failed to file the reports required

by 40 C.F.R. § 61.357(c), or that a Covered Refinery’s most recently-filed report is inaccurate

and/or does not satisfy the requirements of Subpart FF, Navajo and/or Montana Refining, as

applicable, shall submit, by no later than sixty (60) days after completion of the BWN

Compliance Review and Verification Report(s), an amended TAB report to the Applicable State

Agency. Navajo’s and/or Montana Refining’s BWN Compliance Review and Verification

Report(s) shall be deemed an amended TAB report for purposes of Subpart FF reporting to EPA.

ii. If the results of the BWN Compliance Review and Verification Report indicate that

any Covered Refinery has a TAB of over 10 Mg/yr, Navajo and/or Montana Refining, as

applicable, shall submit to the Applicable Federal and State Agencies by no later than 180 days

after completion of the BWN Compliance Review and Verification Report, a plan that identifies

with specificity the compliance strategy and schedule that Navajo and/or Montana Refining, as
59

applicable, will implement to ensure that the Covered Refinery complies with the 6 BQ

compliance option as soon as practicable.

iii. Review and Approval of Plans Submitted Pursuant to Paragraph 22.D.ii. Any plan

submitted pursuant to Paragraph 22.D.ii shall be subject to the approval of, disapproval of, or

modification by EPA, which shall act in consultation with the Applicable State Agency. Within

sixty (60) days after receiving any notification of disapproval or request for modification from

EPA, Navajo and/or Montana Refining, as applicable, shall submit to the Applicable Federal and

State Agencies a revised plan that responds to all identified deficiencies. Upon receipt of

approval or approval with conditions, Navajo and/or Montana Refining, as applicable, shall

implement the plan. Disputes arising under this Paragraph 22.D.iii. shall be resolved in

accordance with the dispute resolution provisions of this Decree.

iv. Certification of Compliance with the 6 BQ Compliance Option. By no later than

thirty (30) days after completion of the implementation of all actions, if any, required pursuant to

Paragraph 22.D.ii or pursuant to Paragraph 22.J.vi to come into compliance with the 6 BQ

Compliance Option, Navajo and/or Montana Refining, as applicable, shall submit a report to the

Applicable Federal and State Agencies that, as to each Refinery, the Refinery complies with the

Benzene Waste NESHAP.

v. TAB is under 1 Mg/Yr. If the results of the BWN Compliance Review and

Verification Report(s) indicate(s) that a Covered Refinery has a TAB of under 1 Mg/yr, the

Covered Refinery shall comply with the Benzene Waste NESHAP regulations applicable to such

refineries.

E. Annual Program. Navajo and Montana Refining shall establish an annual program

of reviewing process information for each Covered Refinery, including but not limited to
60

construction projects, to ensure that all new benzene waste streams are included in each Covered

Refinery’s waste stream inventory. 

F. Benzene Spills. For each spill at each Covered Refinery, Navajo and/or Montana

Refining, as applicable, shall review such spills to determine if benzene waste was generated. 

Navajo and/or Montana Refining, as applicable, shall include benzene generated by such spills in

the TAB for each Covered Refinery.

G. Training.

i. If and when any Covered Refinery’s TAB reaches 1 Mg/yr or more, then by no later

than ninety (90) days from the receipt of the information showing that a Covered Refinery’s TAB

has reached or exceeded 1 Mg/yr, Navajo and/or Montana Refining, as applicable, shall develop

and begin implementation of annual (i.e., once each calendar year) training for all employees

asked to draw benzene waste samples.

ii. If and when any Covered Refinery’s TAB reaches 10 Mg/yr or more, Navajo and/or

Montana Refining, as applicable, shall complete the development of standard operating

procedures for all control equipment used to comply with the Benzene Waste NESHAP. Navajo

and/or Montana Refining, as applicable, shall complete an initial training program regarding

these procedures for all operators assigned to this equipment. Comparable training shall be

provided to any persons who subsequently become operators, prior to their assumption of this

duty. “Refresher” training shall be performed on a periodic basis. Navajo and/or Montana

Refining, as applicable, shall propose a schedule for the initial and refresher training at the same

time that Navajo and/or Montana Refining, as applicable, proposes a plan, pursuant to either

Paragraph 22.D.ii, or Paragraph 22.J.vi, that identifies the compliance strategy and schedule that
61

Navajo and/or Montana Refining, as applicable, will implement to come into compliance with

the 6 BQ compliance option.

iii. As part of Navajo and/or Montana’s training program, they must ensure that the

employees of any contractors hired to perform the requirements of this Paragraph are properly

trained to implement all provisions of this Paragraph at the Covered Refineries.

H. Waste/Slop/Off-Spec Oil Management.

i. By no later than ninety (90) days after the Date of Lodging of the Consent Decree,

Navajo and Montana Refining shall submit to the Applicable Federal and State Agencies, for

each of the Covered Refineries, schematics that: (a) depict the waste management units

(including sewers) that handle, store, and transfer waste/slop/off-spec oil streams; (b) identify the

control status of each waste management unit; and (c) show how such oil is transferred within the

Refinery. Representatives from Navajo, Montana Refining, and EPA thereafter shall confer

about the appropriate characterization of each Refinery’s waste/slop/off-spec oil streams for the

waste management units handling such oil streams, for purposes of each Covered Refinery’s

TAB calculation. At a mutually-agreed upon time, Navajo and/or Montana Refining, as

applicable, shall submit, if necessary, revised schematics that reflect the agreements between

EPA and Navajo and/or Montana Refining regarding the characterization of these oil streams and

the appropriate control standards.

ii. Organic Benzene Waste Streams. For any Covered Refinery, if and when that

Covered Refinery’s TAB reaches 10 Mg/yr and a compliance strategy is approved, all waste

management units handling “organic” benzene wastes, as defined in Subpart FF, shall meet the

applicable control standards of Subpart FF. If, as a result of the discussions between the EPA

and Navajo and/or Montana Refining pursuant to Paragraph 22.H.i, EPA and Navajo and/or
62

Montana Refining agree that controls not already in place are necessary on any waste

management unit handling organic benzene wastes, the Parties shall agree, in writing, to a

schedule, not to exceed two years, for the completion of the installation of the necessary controls.

iii. Aqueous Benzene Waste Streams. For purposes of calculating each Covered

Refinery’s TAB pursuant to the requirements of 40 C.F.R. § 61.342(a), Navajo and Montana

Refining shall include all waste/slop/off-spec oil streams that become “aqueous” until such

streams are recycled to a process or put into a process feed tank (unless the tank is used primarily

for the storage of wastes). If and when a Covered Refinery’s TAB reaches 10 Mg/yr, then, for

purposes of complying with the 6BQ compliance option, all waste management units handling

aqueous benzene waste streams shall either meet the applicable control standards of Subpart FF

or shall have their uncontrolled benzene quantity count toward the applicable 6 megagram limit.

iv. Plan to Quantify Uncontrolled Waste/Slop/Off-Spec Oil Streams. By no later than

ninety (90) days after EPA has approved the schematics, as revised if necessary, required under

Paragraph 22.H.i., Navajo and Montana Refining shall submit, for each of their Covered

Refineries, a plan(s) to quantify waste/slop/off-spec oil movements for all benzene waste streams

which are not controlled. EPA will review the plan and may recommend revisions consistent

with Subpart FF. Upon plan approval, Navajo and Montana Refining shall maintain records

quantifying such movements.

v. Disputes under this Paragraph 22.H. shall be resolved in accordance with the dispute

resolution provisions of this Consent Decree.

I. End of Line Sampling (If a Covered Refinery is Found to Have a TAB of 10

Mg/yr or More). The provisions of this Paragraph 22.I shall apply after a Covered Refinery’s

TAB reaches or exceeds 10 Mg/yr and after the Covered Refinery has completed implementation
63

of an approved compliance plan submitted pursuant to either Paragraph 22.D.ii, or Paragraph

22.J.vi. The provisions shall continue to apply through termination (“Applicability Dates for

Paragraph 22.I.”).

i. By no later than two (2) months after the certification required by Paragraph 22.D.iv,

Navajo and/or Montana Refining, as applicable, shall submit to EPA for approval a plan(s) for an

“end of the line” (“EOL”) determination of the benzene quantity in uncontrolled waste streams. 

A copy of this plan shall be submitted to the Applicable State Agency. The proposed plan of

Navajo and/or Montana Refining, as applicable, shall include, but not be limited to, sampling

locations, methods for flow calculations, and the assumed volatilization rate(s) to be used in

calculating the uncontrolled benzene quantity. Any disputes regarding plan approval under this

Paragraph 22.I. shall be resolved in accordance with the dispute resolution provisions of the

Consent Decree.

ii. If, during the Applicability Dates for Paragraph 22.I, changes in processes, operations,

or other factors lead Navajo and/or Montana Refining, as applicable, to conclude that the

approved sampling locations, approved methods for determining flow calculations, and/or

assumed volatilization rates no longer provide an accurate measure of a Covered Refinery’s EOL

benzene quantity, Navajo and/or Montana Refining, as applicable, shall submit a revised plan to

EPA for approval. A copy of this revised plan also shall be provided to the Applicable State

Agency.

iii. On a monthly basis, Navajo and/or Montana Refining, as applicable, shall conduct

EOL sampling, commencing during the first month of the first full calendar quarter after Navajo

and/or Montana Refining, as applicable, receives written approval from EPA of the sampling

plan for the particular Covered Refinery. Navajo and/or Montana Refining, as applicable, shall
64

take, and have analyzed, three representative samples from each approved sampling location. 

Navajo and/or Montana Refining, as applicable, shall use the average of these three samples as

the benzene concentration for the stream at the approved location. Based on the EOL monthly

sampling results, the approved flow calculations, and the volatilization assumptions, Navajo

and/or Montana Refining, as applicable, shall calculate the sum of the EOL benzene quantity for

the three months contained within the respective quarter. Nothing in this Paragraph 22.I shall

preclude Navajo and/or Montana Refining, as applicable, from taking representative samples

more frequently within any calendar month, provided that Navajo and/or Montana Refining, as

applicable, identifies the basis for the additional samples. Such samples shall be included in

calculating the average monthly EOL benzene quantity.

iv. If the sum of the EOL benzene quantity for the three month period contained within a

quarter equals or exceeds 1.2 Mg, Navajo and/or Montana Refining, as applicable, shall take and

have analyzed three representative samples, drawn on separate days during the subsequent

calendar quarter, of each uncontrolled stream containing benzene over 0.05 Mg/yr, as identified

in the later of (i) the final BWN Compliance Review and Verification Report; or (ii) the most

recently submitted TAB report (hereinafter “Sampling of >0.05 Streams”). Navajo and/or

Montana Refining, as applicable, shall undertake Sampling of >0.05 Streams for the purpose of

trying to identify the cause or source of the potentially elevated benzene quantities.

v. Navajo and/or Montana Refining, as applicable, shall continue to undertake Sampling

of >0.05 Streams in the second quarter after the EOL benzene quantity exceeded 1.2 Mg unless

either: (i) the EOL benzene quantity in the first quarter of the Sampling of > 0.05 Streams

demonstrates that the Covered Refinery’s EOL benzene quantity, prorated on a yearly basis, will

be below 4.8 Mg/yr; or (ii) Navajo and/or Montana Refining, as applicable, discovers and
65

corrects the cause of the potentially elevated benzene quantities and EPA concurs in the

diagnosis and corrective measures of Navajo and/or Montana Refining, as applicable.

vi. If the sum of the EOL benzene quantity for two consecutive quarters indicates that the

EOL benzene quantity, prorated on a yearly basis, will exceed 4.8 Mg/yr, and Navajo and/or

Montana Refining, as applicable, has not discovered and corrected the cause of the potentially

elevated benzene through the process of Sampling of >0.05 Streams, Navajo and/or Montana

Refining, as applicable, shall take and have analyzed three representative samples, drawn on

separate days during the third calendar quarter, of each uncontrolled stream containing benzene

over 0.03 Mg/yr, as identified in the later of (i) the final BWN Compliance Review and

Verification Report; or (ii) most recently submitted TAB report (hereinafter “Sampling of > 0.03

Streams”). Navajo and/or Montana Refining, as applicable, shall undertake Sampling of >0.03

Streams for the purpose of continuing to try to identify the cause or source of the potentially

elevated benzene quantities.

vii. Sampling of >0.05 and/or >0.03 Streams shall not be required if Navajo and/or

Montana Refining, as applicable, advises EPA, and EPA concurs, that the potentially elevated

benzene quantities can be attributed to an identifiable event, such as a spill to the sewer or a

turnaround. After such an identifiable event, however, Navajo and/or Montana Refining, as

applicable, shall calculate its projected uncontrolled benzene quantity for the calendar year in

which the event occurs. If that projection is greater than 6 mg/yr, then Navajo and/or Montana

Refining, as applicable, shall submit to EPA for approval a plan that either (a) identifies with

specificity the compliance strategy and schedule that Navajo and/or Montana Refining, as

applicable, will implement to ensure that the subject Covered Refinery does not exceed 6

Megagrams of uncontrolled benzene for the calendar year; or (b) if as a result of the quantity of
66

benzene released during the event Navajo and/or Montana Refining, as applicable, is unable to

propose a plan to ensure that the subject Covered Refinery’s uncontrolled benzene for the

calendar year will be 6 Megagrams or less, then Navajo and/or Montana Refining, as applicable,

shall identify the actions to be taken to minimize the uncontrolled benzene for the remainder of

the year. A copy of this plan shall be submitted to the Applicable State Agency. Navajo and/or

Montana Refining, as applicable, shall submit this plan within thirty (30) days after the end of the

quarter which resulted in a projection of greater than 6 Mg/yr of uncontrolled benzene. Sampling

of >0.05 and/or >0.03 Streams shall not excuse Navajo and/or Montana Refining, as applicable,

from continuing to take monthly EOL samples. 

viii. If in three consecutive quarters (a) the sum of the benzene quantity indicates that the

EOL benzene quantity, prorated on a yearly basis, will exceed 4.8 Mg; or (b) the sampling of

>0.05 and/or >0.03 streams indicates that projected uncontrolled benzene for the calendar year

will exceed 6 Megagrams, and Navajo and/or Montana Refining, as applicable, has not

discovered and corrected, with EPA’s concurrence, the cause of the potentially elevated benzene

through the process of Sampling of >0.05 and >0.03 Streams, then, in the fourth quarter, Navajo

and/or Montana Refining, as applicable, shall retain a third party contractor to undertake a

comprehensive TAB study and compliance review (“Third-Party TAB Study and Compliance

Review”). By no later than the last day of the fourth quarter, Navajo and/or Montana Refining,

as applicable, shall submit a proposal to the Applicable Federal and State Agencies that identifies

the contractor, the contractor’s scope of work, and the contractor’s schedule for the Third-Party

TAB Study and Compliance Review. Unless, within thirty (30) days after EPA receives this

proposal, EPA disapproves or seeks modifications, Navajo and/or Montana Refining, as

applicable, shall authorize the contractor to commence work. By no later than thirty (30) days
67

after Navajo and/or Montana Refining, as applicable, receives the results of the Third-Party TAB

Study and Compliance Review, Navajo and/or Montana Refining, as applicable, shall submit the

results to the Applicable Federal and State Agencies. EPA, the Applicable State Agency, Navajo

and/or Montana Refining, as applicable, subsequently shall discuss informally the results of the

Third-Party TAB Study and Compliance Review. By no later than one-hundred twenty (120)

days after Navajo and/or Montana Refining, as applicable, receives the results of the Third-Party

TAB Study and Compliance Review, or such other time as Navajo and/or Montana Refining, as

applicable, and EPA may agree, Navajo and/or Montana Refining, as applicable, shall submit to

EPA for approval a plan that addresses any deficiencies identified in the Third-Party TAB Study

and Compliance Review and any deficiencies that EPA brought to the attention of Navajo and/or

Montana Refining, as applicable, as a result of the Third-Party TAB Study and Compliance

Review. A copy of this plan shall be submitted to the Applicable State Agency. The review and

approval of this Plan shall be done in accordance with Paragraph 22.D.iii of this Decree. 

Certification of Compliance shall be done in accordance with Paragraph 22.D.iv.

J. End of Line Sampling (TAB is equal to or greater than 1 Mg/yr but less than 10

Mg/yr). The provisions of this Paragraph 22.J shall apply from the date that the final BWN

Compliance Review and Verification Report submitted for any Covered Refinery pursuant to

Paragraph 22.C shows that a Covered Refinery’s TAB is equal to or greater than 1 Mg/yr but less

than 10 Mg/yr, through the earlier of: (1) the time that the Covered Refinery reaches a TAB of 10

Mg/yr or more (in which case, the provisions of Paragraph 22.I shall begin to apply); or

(2) termination of the Consent Decree.

i. Navajo and/or Montana Refining, as applicable, shall, once per calendar year, conduct

sampling, consistent with the requirements of 40 C.F.R. § 61.355(c)(1) and (3), of all waste
68

streams containing benzene that contributed 0.05 Mg/yr or more to the TAB set forth in the final

BWN Compliance Review and Verification Report or in the previous year’s TAB, whichever is

later;

ii. By no later than ninety (90) days after the date of submitting the final BWN

Compliance Review and Verification Report, representatives from EPA and the Applicable State

Agency shall meet at the Covered Refinery with representatives from Navajo and/or Montana

Refining, as applicable, for the purpose of identifying an appropriate procedure for conducting

EOL sampling and measuring EOL benzene quantities at that Covered Refinery. EPA, the

Applicable State Agency, and Navajo and/or Montana Refining, as applicable, shall confer about

potential EOL sample locations and shall review process and flow information and oil movement

transfers. By no later than thirty (30) days after EPA and the Applicable State Agency have met

with Navajo and/or Montana, as applicable, at the Covered Refinery, Navajo and/or Montana

Refining, as applicable, shall submit a plan to EPA for approval that contains proposed sampling

locations and methods for flow calculations to be used in the EOL determination of benzene

quantity. A copy of this plan shall be submitted to the Applicable State Agency. Any disputes

regarding plan approval under this Paragraph 22.J shall be resolved in accordance with the

dispute resolution provisions of this Consent Decree. If, during the life of this Consent Decree,

changes in processes, operations, or other factors lead Navajo and/or Montana Refining, as

applicable, to conclude that either the approved sampling locations and/or the approved methods

for determining flow calculations no longer provide an accurate measure of the Covered

Refinery’s EOL benzene quantity, Navajo and/or Montana Refining, as applicable, shall submit a

revised plan to EPA for approval. A copy of this revised plan also shall be submitted to the

Applicable State Agency.
69

iii. On a quarterly basis, Navajo and/or Montana Refining, as applicable, shall conduct an

EOL determination of benzene quantity, commencing in the first full calendar quarter after

Navajo and/or Montana Refining, as applicable, receives written approval from EPA of the

sampling plan for the Covered Refinery. Navajo and/or Montana Refining, as applicable, shall

take, and have analyzed, at least three representative samples from each approved sampling

location. Navajo and/or Montana Refining, as applicable, shall use the average of these three

samples as the benzene concentration for the stream at the approved location. Based on the EOL

quarterly sampling results and the approved flow calculations, Navajo and/or Montana Refining,

as applicable, shall calculate the quarterly EOL benzene quantity.

iv. If the quarterly EOL benzene quantity exceeds 2.5 Mg, Navajo and/or Montana

Refining, as applicable, shall submit to the Applicable Federal and State Agencies a plan that

identifies with specificity the actions that Navajo and/or Montana Refining, as applicable, shall

take, and the schedule for such actions, to ensure that the TAB for the Covered Refinery does not

exceed 10 Mg in the calender year.

v. On a quarterly basis, Navajo and/or Montana Refining, as applicable, shall also

calculate a projected calendar year TAB, utilizing all EOL results for that calendar year and any

other information (such as process turnarounds) to undertake the projection. If the projected

calendar year calculation of the TAB at a Covered Refinery equals or exceeds 10 Mg, Navajo

and/or Montana Refining, as applicable, shall submit to the Applicable Federal and State

Agencies a plan that identifies with specificity the actions that Navajo and/or Montana Refining,

as applicable, shall take, and the schedule for such actions, to ensure that the TAB for the

Covered Refinery does not exceed 10 Mg in the calender year. Navajo and/or Montana Refining,
70

as applicable, shall submit this plan within thirty (30) days after the end of the quarter which

resulted in a projection of greater than 10 Mg.

vi. If it appears that appropriate actions cannot be taken to ensure that the Covered

Refinery maintains a TAB of under 10 Mg/yr, then Navajo and/or Montana Refining, as

applicable, shall retain a third party contractor to undertake a comprehensive TAB study and

compliance review (“Third-Party TAB Study and Compliance Review”). At a mutually agreed

upon date, Navajo and/or Montana Refining, as applicable, shall submit a proposal to the

Applicable Federal and State Agencies that identifies the contractor, the contractor’s scope of

work, and the contractor’s schedule for the Third-Party TAB Study and Compliance Review. 

Unless, within thirty (30) days after EPA receives this proposal, EPA disapproves or seeks

modifications, Navajo and/or Montana Refining, as applicable, shall authorize the contractor to

commence work. By no later than thirty (30) days after Navajo and/or Montana Refining, as

applicable, receives the results of the Third-Party TAB Study and Compliance Review, Navajo

and/or Montana Refining, as applicable, shall submit the results to the Applicable Federal and

State Agencies. EPA, the Applicable State Agency, and Navajo and/or Montana Refining, as

applicable, subsequently shall discuss informally the results of the Third-Party TAB Study and

Compliance Review. By no later than 120 days after Navajo and/or Montana Refining, as

applicable, receives the results of the Third-Party TAB Study and Compliance Review, or such

other time as Navajo and/or Montana Refining, as applicable, and EPA may agree, Navajo and/or

Montana Refining, as applicable, shall submit to EPA for approval a plan that identifies with

specificity the compliance strategy and schedule that Navajo and/or Montana Refining, as

applicable, will implement to ensure that the Covered Refinery complies with the 6BQ

compliance option as soon as practicable. A copy of this Plan shall be submitted to the
71

Applicable State Agency. The review and approval of this Plan shall be done in accordance with

Paragraph 22.D.iii of this Decree. Certification of Compliance shall be done in accordance with

Paragraph 22.D.iv.
72

K. Miscellaneous Measures.

i. Navajo and/or Montana Refining, as and to the extent applicable, shall comply with the

Benzene Waste NESHAP provisions applicable to groundwater remediation conveyance systems

at each of their Refineries having such systems.

ii. The provisions of this Paragraph 22.K.ii shall apply after a Covered Refinery’s TAB

reaches or exceeds 10 Mg/yr and after the Covered Refinery has completed implementation of an

approved compliance plan submitted pursuant to either Paragraph 22.D.ii or Paragraph 22.J.vi. 

The provisions shall continue to apply until termination of the Consent Decree. Navajo and/or

Montana Refining, as applicable, shall:

a. Conduct monthly visual inspections of all water traps within the Covered

Refinery’s individual drain systems; and

b. On a weekly basis, visually inspect all conservation vents or indicators on process

sewers for detectable leaks; reset any vents where leaks are detected; and record

the results of the inspections. After two (2) years of weekly inspections, and

based upon an evaluation of the recorded results, Navajo and/or Montana

Refining, as applicable, may submit a request to the applicable EPA Region to

modify the frequency of the inspections. EPA shall not unreasonably withhold its

consent. Nothing in this Paragraph 22.K.ii.b. shall require Navajo and/or

Montana Refining, as applicable, to monitor conservation vents on fixed roof

tanks.

iii. From the date that the final BWN Compliance Review and Verification Report

submitted for any Covered Refinery pursuant to Paragraph 22.C shows that a Covered Refinery’s

TAB is equal to or greater than 1 Mg/yr but less than 10 Mg/yr, and through termination of this

Consent Decree, Navajo and/or Montana Refining, as applicable, shall identify and mark all area

drains that are segregated stormwater drains.
73

L. Projects/Investigations.

Unless and until the TAB of any of the Covered Refineries reaches or exceeds 10 Mg/yr,

Navajo and Montana Refining will not be required to undertake any projects or any

investigations relating to the Benzene Waste NESHAP other than those required in

Paragraphs 22.C - 22.K. Within 60 days of receipt of information indicating that the TAB of a

Covered Refinery has reached or exceeded 10 Mg/yr, EPA and Navajo and/or Montana Refining,

as applicable, shall meet and confer to discuss and establish an appropriate project or

investigation relating to the Benzene Waste NESHAP.

M. Recordkeeping and Reporting Requirements for this Paragraph

i. Outside of the Reports Required under 40 C.F.R. § 61.357 and under the

Quarterly Progress Report Procedures of Section IX (Recordkeeping and Reporting). At

the times specified in the applicable provisions of this Paragraph, Navajo and/or Montana

Refining shall submit, as and to the extent required, the following reports to the Applicable

Federal and State Agencies:

a. BWN Compliance Review and Verification Report (¶ 22.C.i.), as amended, if

necessary (¶ 22.C.ii.);

b. Amended TAB Report, if necessary (¶ 22.D.i.);

c. Plan for a Covered Refinery to come into compliance with the 6 BQ compliance

option upon discovering that its TAB equals or exceeds 10 Mg/yr through the

BWN Compliance Review and Verification Report (¶ 22.D.ii.), or the Third-Party

TAB Study and Compliance Review that may result from EOL sampling

(¶ 22.J.vi);

d. Compliance certification, if necessary (¶ 22.D.iv.);

e. Schematics of waste/slop/off-spec oil movements (¶ 22.H.i.), as revised, if

necessary (¶ 22.H.i.);
74

f. Schedule to complete implementation of controls on waste management units

handling organic benzene waste, if necessary (¶ 22.H.ii.);

g. Plan to quantify uncontrolled waste/slop/off-spec oil movements (¶ 22.H.iv.)

h. EOL Sampling Plans (¶¶ 22.I.i., 22.J.ii,), and revised EOL Sampling Plans, if

necessary (¶¶ 22.I.ii., 22.J.ii.);

i. Plan, if necessary, to ensure that uncontrolled benzene does not equal or exceed,

as applicable, 6 or 10 Mg/yr -- or is minimized -- based on projected calendar year

uncontrolled benzene quantities as determined through EOL sampling

(¶¶ 22.I.vii., 22.J.iv.-v.)

j. Proposal for a Third-Party TAB Study and Compliance Review, if necessary

(¶¶ 22.I.viii., 22.J.vi.);

k. Third-Party TAB Study and Compliance Review, if necessary (¶¶ 22.I.viii.,

22.J.vi.);

l. Plan to implement the results of the Third-Party TAB Study and Compliance

Review, if necessary (¶¶ 22.I.viii., 22.J.vi.);

ii. As part of the Reports Required under the Quarterly Progress Report

Procedures of Section IX (Recordkeeping and Reporting).

a. TAB is equal to or greater than 1 Mg/yr but less than 10 Mg/yr. From the date

that the final BWN Compliance Review and Verification Report submitted for any Covered

Refinery pursuant to Paragraph 22.C shows that a Covered Refinery’s TAB is equal to or greater

than 1 Mg/yr but less than 10 Mg/yr, until the earlier of: (1) the time that the Covered Refinery

reaches a TAB of 10 Mg/yr or more (in which case, the provisions of Paragraph 22.M.ii.b shall

begin to apply); or (2) termination of the Consent Decree, Navajo and/or Montana Refining, as

applicable, shall submit the following information in Quarterly Progress Reports pursuant to the

requirements of Section IX of this Consent Decree:

(1) A description of the measures that it/they took to comply with the training

provisions of Paragraph 22;
75

(2) The annual, non-EOL sampling required at the Covered Refinery pursuant

to the requirements of Paragraph 22.J.i (this information shall be

submitted in the first quarterly progress report for the first calendar quarter

of each year);

(3) The results of the quarterly EOL sampling undertaken pursuant to

Paragraph 22.J.iii. for the calendar quarter. The report shall include a list

of all waste streams sampled, the results of the benzene analysis for each

sample, and the computation of the EOL benzene quantity for the

respective quarter. The Covered Refinery shall identify whether the

quarterly benzene quantity equals or exceeds 2.5 Mg and whether the

projected calendar year benzene quantity equals or exceeds 10 Mg. If

either condition is met, the Covered Refinery shall include in the quarterly

report the plan required pursuant to Paragraph 22.J.iv and/or 22.J.v., and

shall specifically seek EPA’s concurrence in the plan.

b. TAB is 10 Mg/yr or More. The provisions of this Paragraph 22.M.ii.b shall apply

after a Covered Refinery’s TAB reaches or exceeds 10 Mg/yr and after the Covered Refinery has

completed implementation of an approved compliance plan submitted pursuant to either

Paragraph 22.D.ii, or Paragraph 22.J.vi. The provisions shall continue to apply until termination. 

Navajo and/or Montana Refining, as applicable, shall submit the following information in

Quarterly Progress Reports pursuant to the requirements of Section IX of this Consent Decree:

(1) A description of the measures that it/they took to comply with the training

provisions of Paragraph 22;

(2) The results of the three months of monthly EOL sampling undertaken

pursuant to Paragraph 22.I.iii. for the calendar quarter. The report shall

include a list of all waste streams sampled, the results of the benzene

analysis for each sample, and the computation of the EOL benzene

quantity for the three months contained within the respective quarter;

(3) If the quarter is one in which Navajo and/or Montana Refining, as

applicable, is required to undertake Sampling of >0.05 Streams or

Sampling of >0.03 Streams at a Covered Refinery, Navajo and/or Montana

Refining, as applicable, also shall: (A) submit the results of those sampling

events; (B) describe the actions that Navajo and/or Montana Refining, as

applicable, is taking to identify and correct the source of the potentially

elevated benzene quantities; and (C) to the extent that Navajo and/or

Montana Refining, as applicable, identifies actions to correct the
76

potentially elevated benzene quantities, specifically seek EPA’s

concurrence with the proposal of Navajo and/or Montana Refining, as

applicable.

iii. A summary of the reports, plans, and certifications due under the provisions of

Paragraph 22 is attached as Appendix G to this Consent Decree.

N. Agencies to Receive Reports, Plans and Certifications Required in the

Paragraph; Number of Copies. Navajo and/or Montana Refining, as applicable, shall submit

all reports, plans and certifications required to be submitted under this Paragraph to the

Applicable Federal and State Agencies. For each submission, Navajo and/or Montana Refining,

as applicable, shall submit two copies to EPA, to the applicable Region, and to the Applicable

State Agency. By agreement between each of the offices that are to receive the materials in this

Paragraph and Navajo and/or Montana Refining, as applicable, the materials may be submitted

electronically.

23. Leak Detection and Repair (“LDAR”) Program Enhancements.

In order to minimize or eliminate fugitive emissions of volatile organic compounds

(“VOCs”), benzene, volatile hazardous air pollutants (“VHAPs”), and organic hazardous air

pollutants (“HAPs”) from equipment in light liquid and/or in gas/vapor service, Navajo and

Montana Refining shall undertake at each of the Covered Refineries the enhancements at

Paragraph 23.A through Paragraph 23.P to each Covered Refinery’s LDAR program under

Title 40 of the Code of Federal Regulations, Part 60, Subpart GGG; Part 61, Subparts J and V;

Part 63, Subparts F, H, and CC; and applicable state LDAR requirements. The terms

“equipment,” “in light liquid service” and “in gas/vapor service” shall have the definitions set

forth in the applicable provisions of Title 40 of the Code of Federal Regulations, Part 60,

Subpart GGG; Part 61, Subparts J and V; Part 63, Subparts F, H and CC; and applicable state
77

LDAR regulations. Nothing in this Paragraph 23 shall be construed to require Navajo or

Montana Refining to include in the enhanced program described herein any equipment or units

not otherwise subject to any applicable federal or state LDAR regulation.

A. Written Refinery-Wide LDAR Program. By no later than 120 days after the Date

of Lodging of the Consent Decree, Navajo and Montana Refining shall develop and maintain, for

each of the Covered Refineries, a written, Refinery-wide program for compliance with all

applicable federal and state LDAR regulations, and, in addition with respect to Navajo, for

compliance with permit 195-M15 (including any future modifications to this permit occurring

during the life of this Consent Decree). Until termination of this Decree, Navajo and Montana

Refining shall implement this program on a Refinery-wide basis, and Navajo and Montana

Refining shall update each Covered Refinery’s program as necessary to ensure continuing

compliance. Each Refinery-wide program shall include at a minimum:

i. An overall, Refinery-wide leak rate goal that will be a target for achievement on a

process-unit-by-process-unit basis;

ii. An identification of all equipment in light liquid and/or in gas/vapor service that has

the potential to leak VOCs, HAPs, VHAPs, and benzene within process units that are owned and

maintained by each Refinery;

iii. Procedures for identifying leaking equipment within process units that are owned and

maintained by each Refinery;

iv. Procedures for repairing and keeping track of leaking equipment;

v. Procedures for identifying and including in the LDAR program new equipment; and 

vi. A process for evaluating new and replacement equipment to promote consideration

and installation of equipment that will minimize leaks and/or eliminate chronic leakers.
78

B. Training. By no later than one year from the Date of Lodging of the Consent Decree,

Navajo and Montana Refining shall implement the following training programs at each of its

Refineries:

i. For personnel newly-assigned to LDAR responsibilities, Navajo and Montana Refining

shall require LDAR training prior to each employee beginning such work;

ii. For all personnel assigned LDAR responsibilities, Navajo and Montana Refining shall

provide and require completion of annual LDAR training; and

iii. For all other Refinery operations and maintenance personnel (including contract

personnel), Navajo and Montana Refining shall provide and require completion of an initial

training program that includes instruction on aspects of LDAR that are relevant to the person’s

duties. Until termination of this Decree, “refresher” training in LDAR shall be performed on a

three year cycle.

C. LDAR Audits. Commencing upon the Date of Lodging of the Consent Decree,

Navajo and Montana Refining shall implement at each of the Covered Refineries, the

Refinery-wide audits set forth in Paragraphs 23.C.i. and 23.C.ii., to ensure each Refinery’s

compliance with all applicable LDAR requirements. The LDAR audits shall include but not be

limited to, comparative monitoring, records review, tagging, data management, and observation

of the LDAR technicians’ calibration and monitoring techniques.

i. Third-Party Audits. Navajo and Montana Refining shall retain a contractor(s) to

perform a third-party audit of each Refinery’s LDAR program at least once every four years. The

first third-party audit for two of the three Covered Refineries shall be completed no later than one

year from the Date of Lodging of the Consent Decree. The audit of the remaining Covered

Refinery shall be completed within two years from the Date of Lodging of the Consent Decree.
79

ii. Internal Audits. Navajo and Montana Refining shall conduct internal audits of each

Covered Refinery’s LDAR program by sending personnel familiar with the LDAR program and

its requirements from one or more of the Covered Refineries or locations to audit another

Covered Refinery. Navajo and Montana Refining shall complete the first round of these internal

LDAR audits by no later than two years from the date of the completion of the third-party audits

required in Paragraph 23.C.i. Internal audits of each Covered Refinery shall be held every four

years thereafter for the life of this Consent Decree.

iii. To ensure that an audit at each Covered Refinery occurs every two years, third-party

and internal audits shall be separated by two years.

iv. Alternative. As an alternative to the internal audits required by Paragraph 23.C.ii.,

Navajo and/or Montana Refining may elect to retain third-parties to undertake these audits,

provided that an audit of each Covered Refinery occurs every two (2) years.

D. Implementation of Actions Necessary to Correct Non-Compliance.

If the results of any of the audits conducted pursuant to Paragraph 23.C at any of the

Covered Refineries identify any areas of non-compliance, Navajo and/or Montana Refining, as

applicable, shall implement, as soon as practicable, all steps necessary to correct the area(s) of

non-compliance, and to prevent, to the extent practicable, a recurrence of the cause of the

non-compliance. Until termination of the Consent Decree, Navajo and Montana Refining shall

retain the audit reports generated pursuant to Paragraphs 23.C.i and 23.C.ii and shall maintain a

written record of the corrective actions that Navajo and Montana Refining take at each of the

Covered Refineries in response to any deficiencies identified in any audits. In the quarterly

report submitted pursuant to the provisions of Section IX of this Consent Decree (Recordkeeping

and Reporting) for the first calendar quarter of each year, Navajo and Montana Refining shall
80

submit the audit reports and corrective action records for audits performed and actions taken

during the previous year.

E. Internal Leak Definition for Valves and Pumps; Compressor Compliance.

Navajo and Montana Refining shall utilize the following internal leak definitions for

valves and pumps in light liquid and/or gas/vapor service, unless other permit(s), regulations, or

laws require the use of lower leak definitions.

i. Leak Definition for Valves. By no later than two years after the Date of Lodging of

this Consent Decree, Navajo and Montana Refining shall utilize an internal leak definition of 500

ppm VOCs for all of their Refineries’ valves, excluding pressure relief devices.

ii. Leak Definition for Pumps. Navajo and Montana Refining shall utilize an internal

leak definition of 2000 ppm for their Refineries’ pumps by the following dates:

a. By no later than eighteen (18) months after the Date of Lodging of this Consent

Decree, Navajo and Montana Refining shall utilize this definition for 50% of the total number of

pumps that each of them has at their respective Covered Refineries;

b. By no later than twenty-four (24) months after the Date of Lodging of this Consent

Decree, Navajo and Montana Refining shall utilize this definition for 85% of the total number of

pumps that each of them has at their respective Covered Refineries;

c. By no later than forty (40) months after the Date of Lodging of this Consent Decree,

Navajo and Montana Refining shall utilize this definition for all of the pumps that each of them

has at their respective Covered Refineries.

iii. Two Compressors: NSPS Applicability. The FCCU wet gas compressor at the

Artesia Refinery (“Artesia FCCU Wet Gas Compressor”) and the Crude Unit overhead

compressor at the Lovington Refinery (“Lovington Crude Compressor”) shall be subject to, and
81

commence compliance with, the requirements of 40 C.F.R.§ 60.482-3, and the corollary

reporting and recordkeeping requirements, by the following dates:

Artesia FCCU Wet Gas Compressor December 31, 2003

Lovington Crude Compressor Date of Lodging

F. Reporting, Recording, Tracking, Repairing and Remonitoring Leaks of Valves

and Pumps Based on the Internal Leak Definitions.

i. Reporting. For regulatory reporting purposes, Navajo and Montana Refining may

continue to report leak rates in valves and pumps against the applicable regulatory leak

definition, or may use the lower, internal leak definitions specified in Paragraph 23.E.

ii. Recording, Tracking, Repairing and Remonitoring Leaks. Navajo and Montana

Refining shall record, track, repair and remonitor all leaks in excess of the internal leak

definitions of Paragraphs 23.E.i and 23.E.ii at such time as those definitions become applicable,

except that Navajo and Montana Refining shall have thirty (30) days to make repairs and

remonitor leaks that are greater than the internal leak definitions but less than the applicable

regulatory leak definitions.

G. First Attempt at Repairs on Valves. Beginning no later than ninety (90) days after

the Date of Lodging of the Consent Decree, Navajo and Montana Refining shall make a “first

attempt” at repair on any valve that has a reading greater than 200 ppm of VOCs, excluding

control valves, pumps, and components that LDAR personnel are not authorized to repair. 

Navajo and Montana Refining, or their designated contractor, however, shall remonitor, by no

later than the end of the next calendar day, all valves that LDAR personnel attempted to repair. 

Unless the remonitored leak rate is greater than the applicable leak definition, no further action

will be necessary. If, after two years from the commencement of the “first attempt at repair”
82

program set forth in this Paragraph 23.G, Navajo and Montana Refining can demonstrate with

sufficient monitoring data that the “first attempt” repair at 200 ppm will worsen or not improve a

Refinery’s leak rates, Navajo and Montana Refining may request that EPA reconsider or amend

this requirement.

H. LDAR Monitoring Frequency.

i. Pumps. When the lower leak definition for pumps becomes applicable pursuant to

Paragraph 23.E.ii, Navajo and Montana Refining shall monitor pumps at the lower leak

definition on a monthly basis.

ii. Valves. At the Artesia and Lovington Refineries, on and after the Date of Lodging of

the Consent Decree, Navajo shall continue to implement a program to monitor valves more

frequently than is required by applicable regulations by monitoring valves -- other than difficult

to monitor or unsafe to monitor valves -- on a quarterly basis, with no ability to skip periods on a

process-unit-by-process-unit basis. At the Great Falls Refinery, by no later than two years after

the Date of Lodging of the Consent Decree, Montana Refining shall implement a program to

monitor valves more frequently than is required by applicable regulations by monitoring valves – 

other than difficult to monitor or unsafe to monitor valves -- on a quarterly basis, with an option

to utilize the semi-annual skip period, but not the annual skip period. If, however, a process unit

is subject to the Hazardous Organic NESHAP (“HON”) or the modified-HON option in the

Refinery MACT, Navajo and Montana Refining must comply with the monitoring requirements

in the applicable regulation.

I. Electronic Monitoring, Storing, and Reporting of LDAR Data.

i. Electronic Storing and Reporting of LDAR Data. At each of the Covered Refineries,

Navajo and Montana Refining have and will continue to maintain an electronic database for
83

storing and reporting LDAR data. By no later than six months after the Date of Lodging, the

electronic database shall include data identifying the date and time of the monitored event, and

the operator and instrument used in the monitored event.

ii. Electronic Data Collection During LDAR Monitoring and Transfer Thereafter. By no

later than six months after the Date of Lodging for Navajo, and one year after the Date of

Lodging for Montana Refining, Navajo and Montana Refining shall submit to the Applicable

Federal and State Agencies operational specifications designed to minimize the use of any form

of data collection and data transfer during and after LDAR monitoring other than electronic data

collection and transfer. After approval of these operational specifications, Navajo and Montana

Refining shall use dataloggers and/or electronic data collection devices during all LDAR

monitoring. Navajo and Montana Refining, or their designated contractor, shall use its/their best

efforts to transfer, on a daily basis, electronic data from electronic datalogging devices to the

electronic database of Paragraph 23.I.i. For all monitoring events in which an electronic data

collection device is used, the collected monitoring data shall include a time and date stamp. 

Navajo and Montana Refining may use paper logs where necessary or more feasible (e.g., small

rounds, remonitoring, or when dataloggers are not available or broken), and shall record, at a

minimum, the identification of the technician undertaking the monitoring, the date, and the

identification of the monitoring equipment. Navajo and Montana Refining shall use their best

efforts to transfer any manually recorded monitoring data to the electronic database of

Paragraph 23.I.i within seven days of monitoring.

J. QA/QC of LDAR Data. By no later than ninety (90) days after the Date of Lodging

of the Consent Decree, Navajo and Montana Refining, or a third party contractor retained by

Navajo and Montana Refining, shall develop and implement a procedure to ensure a quality
84

assurance/quality control (“QA/QC”) review of all data generated by LDAR monitoring

technicians. Navajo and Montana Refining shall ensure that monitoring data provided to Navajo

and Montana Refining by its contractors is reviewed for QA/QC before the contractor submits

the data to Navajo and Montana Refining. At least once per calendar quarter, Navajo and

Montana Refining shall perform QA/QC of the contractor’s monitoring data which shall include,

but not be limited to: number of components monitored per technician, time between monitoring

events, and abnormal data patterns.

K. LDAR Personnel. By no later than the Date of Lodging of the Consent Decree,

Navajo and Montana Refining shall establish a program that will hold LDAR personnel

accountable for LDAR performance. Navajo and Montana Refining shall maintain a position

within each Covered Refinery responsible for LDAR management, with the authority to

implement improvements.

L. Adding New Valves and Pumps. By no later than one hundred and twenty (120)

days from the Date of Lodging, Navajo and Montana Refining shall establish a tracking program

for maintenance records (e.g., a Management of Change program) to ensure that valves and

pumps added to each Refinery during maintenance and construction is integrated into the LDAR

program.

M. Calibration/Calibration Drift Assessment.

i. Calibration. Navajo and Montana Refining shall conduct all calibrations of LDAR

monitoring equipment using methane as the calibration gas, in accordance with 40 C.F.R. Part

60, EPA Reference Test Method 21.

ii. Calibration Drift Assessment. Beginning no later than the Date of Lodging of the

Consent Decree, Navajo and Montana Refining shall conduct calibration drift assessments of
85

LDAR monitoring equipment at the end of each monitoring shift, at a minimum. Navajo and

Montana Refining shall conduct the calibration drift assessment using, at a minimum, a 500 ppm

calibration gas. If any calibration drift assessment after the initial calibration shows a negative

drift of more than 10% from the previous calibration, Navajo and Montana Refining shall

remonitor all valves that were monitored since the last calibration that had a reading greater than

100 ppm and shall remonitor all pumps that were monitored since the last calibration that had a

reading greater than 500 ppm.

N. Delay of Repair. Beginning no later than the Date of Lodging of the Consent Decree,

for any equipment for which Navajo and Montana Refining are allowed, under the applicable

regulations, to place on the "delay of repair" list for repair:
86

i. For all equipment, Navajo and Montana Refining shall:

a. Require sign-off by the unit supervisor that the piece of equipment is technically

infeasible to repair without a process unit shutdown, before the component is eligible for

inclusion on the "delay of repair" list; and

b. Include equipment that is placed on the “delay of repair” list in Navajo’s and Montana

Refining’s regular LDAR monitoring.

ii. For valves: For valves, other than control valves, leaking at a rate of 10,000 ppm or

greater, Navajo shall continue to use its “drill and tap” method for fixing such leaking valves,

rather than placing the valve on the “delay of repair” list, unless Navajo can demonstrate that

there is a safety, mechanical, or major environmental concern posed by repairing the leak in this

manner. After two unsuccessful attempts to repair a leaking valve through the drill and tap

method, Navajo may place the leaking valve on its “delay of repair” list. If a new method

develops for repairing such valves, Navajo will advise EPA prior to implementing such new

method. For valves, other than control valves, leaking at a rate of 50,000 ppm or greater,

Montana Refining shall undertake extraordinary efforts to fix such leaking valves, rather than

placing the valve on the “delay of repair” list, unless Montana Refining can demonstrate that

there is a safety, mechanical, or major environmental concern posed by repairing the leak in this

manner.

iii. For pumps: At such time as the lower leak rate definition applies pursuant to

Paragraph 23.E.ii, for pumps leaking at a rate of 2000 ppm or greater, Navajo and Montana

Refining shall undertake their best efforts to isolate and repair such pumps with a first attempt at

fifteen (15) days.

O. Recordkeeping and Reporting Requirements for this Paragraph. 
87

i. Outside of the Reports Required under 40 C.F.R. § 63.654 and the Quarterly Progress

Report Procedures of Section IX (Recordkeeping and Reporting).

a. Written Refinery-Wide LDAR Program No later than thirty (30) days after completion

of the development of the written refinery-wide LDAR programs that Navajo and Montana

Refining develop pursuant to Paragraph 23.A, Navajo and Montana Refining shall submit a copy

of each Refinery’s Program to the Applicable Federal and State Agencies.

b. Submission of Operational Specifications for Electronic Data Collection during LDAR

Monitoring and Certification of Use of Electronic Data Collection during LDAR Monitoring. By

no later than six months after the Date of Lodging for Navajo, and one year after the Date of

Lodging for Montana Refining, Navajo and Montana Refining shall submit to the Applicable

Federal and State Agencies operational specifications designed to minimize the use of any form

of data collection and data transfer during and after LDAR monitoring other than electronic data

collection and transfer.

ii. As Part of Either the Reports Required under 40 C.F.R. § 63.654 or the Quarterly

Progress Report Procedures of Section IX (Recordkeeping and Reporting). Consistent with the

requirements of Section IX (Recordkeeping and Reporting), Navajo and Montana Refining shall

include the following information, at the following times, in their quarterly progress reports:

a. First Quarterly Progress Report Due under the Consent Decree. At the later of: (i) the

first quarterly progress report due under the Consent Decree; or (ii) the first quarterly progress

report in which the requirement becomes due, Navajo and Montana Refining shall include the

following:

(1) A certification of the implementation of the “first attempt at repair”

program of Paragraph 23.G;
88

(2) A certification of the implementation of QA/QC procedures for review of

data generated by LDAR technicians as required by Paragraph 23.J;

(3) An identification of the individual at each Refinery responsible for LDAR

performance as required by Paragraph 23.K;

(4) A certification of the development of a tracking program for new valves

and pumps added during maintenance and construction as required by

Paragraph 23.L;

(5) A certification of the implementation of the calibration drift assessment

procedures of Paragraph 23.M; and 

(6) A certification of the implementation of the “delay of repair” procedures

of Paragraph 23.N.

b. Quarterly Progress Report for the First Calendar Quarter of Each Year. Until

termination of the Consent Decree, in the quarterly progress report that Navajo and Montana

Refining submit pursuant to Section XI for the first calendar quarter of each year, Navajo and

Montana Refining shall include an identification of each audit that was conducted pursuant to the

requirements of Paragraph 23.C in the previous calendar year including, for each Covered

Refinery, an identification of the auditors, a summary of the audit results, and a summary of the

actions that Navajo and Montana Refining took or intend to take to correct all deficiencies

identified in the audits.

c. In Each Report due under 40 C.F.R. § 63.654. In each report due under 40 C.F.R.

§ 63.654, Navajo and Montana Refining shall include:

(1) Training. Information identifying the measures that Navajo and Montana

Refining took to comply with the provisions of Paragraph 23.B; and

(2) Monitoring. The following information on LDAR monitoring: (a) a list of

the process units monitored during the quarter; (b) the number of valves

and pumps monitored in each process unit; (c) the number of valves and

pumps found leaking; (d) the number of “difficult to monitor” pieces of

equipment monitored; (e) the projected month of the next monitoring
89

event for that unit; and (f) a list of all equipment currently on the “delay of

repair” list and the date each component was placed on the list.

iii. A summary of the reports, plans, and certifications due under the provisions of

Paragraph 23 is attached as Appendix H to this Consent Decree.

P. Agencies to Receive Reports, Plans and Certifications Required in this

Paragraph; Number of Copies. Navajo and/or Montana Refining, as applicable, shall submit

all reports, plans and certifications required to be submitted under this Paragraph to the

Applicable Federal and State Agencies. For each submission, Navajo and/or Montana Refining,

as applicable, shall submit two copies to EPA, to the applicable Region, and to the Applicable

State Agency. By agreement between each of the offices that are to receive the materials in this

Paragraph and Navajo and/or Montana Refining, the materials may be submitted electronically. 

24. Incorporation of Consent Decree Requirements into Federally-Enforceable

Permits.

A. Within 180 Days After Lodging. As soon as practicable following the Date of

Lodging of the Consent Decree, but in no event later than 180 days following the Date of

Lodging of the Consent Decree, Navajo and Montana Refining shall submit applications to the

Applicable State Agency to incorporate the emission limits, standards, and/or schedules required

by the Consent Decree that are effective as of the Date of Lodging of the Consent Decree into

minor or major new source review permits or other permits (other than Title V permits) which

are federally enforceable. Following submission of the permit application, Navajo and Montana

Refining shall cooperate with the Applicable State Agency by promptly submitting to the

Applicable State Agency all information that the Applicable State Agency seeks following its

receipt of the permit application. Upon issuance of such permits, Navajo and Montana Refining
90

shall file any applications necessary to incorporate the requirements of those permits into the

Title V permits of the Covered Refineries.

B. At Variable Times. As soon as practicable, but in no event later than thirty (30) days

after the effective date or establishment of any emission limits, standards and schedules under

Section V of this Consent Decree, Navajo and Montana Refining shall submit applications to the

Applicable State Agency to incorporate those emission limitations, standards, and/or schedules

into minor or major new source review permits or other permits (other than Title V permits)

which are federally enforceable. Following submission of the permit application, Navajo and

Montana Refining shall cooperate with the Applicable State Agency by promptly submitting to

the Applicable State Agency all information that the Applicable State Agency seeks following its

receipt of the permit application. Upon issuance of such permits, Navajo and Montana Refining

shall file any applications necessary to incorporate the requirements of those permits into the

Title V permits of the Covered Refineries.

C. Mechanism for Title V Incorporation. The Parties agree that the incorporation of

the requirements of this Consent Decree into Title V permits shall be in accordance with state

Title V rules.

25. Obtaining Construction Permits. Navajo and Montana Refining agree to use best

efforts to obtain all required, federally enforceable permits for the construction of the pollution

control technology and/or the installation of equipment necessary to implement the affirmative

relief and environmental projects set forth in this Section V and in Section VIII. To the extent

that Navajo and/or Montana Refining must submit permit applications for this construction or

installation to the Applicable State Agencies, Navajo and Montana Refining shall cooperate with

the Applicable State Agency by promptly submitting to the Applicable State Agency all
91

information that the Applicable State Agency seeks following its receipt of the permit

application. This Paragraph 25 is not intended to prevent Navajo and/or Montana Refining from

applying to the Applicable State Agency for a pollution control project exemption.

VI. EMISSION CREDIT GENERATION

26. Emission Credit Generation.

A. Summary. The intent of this Section generally is to prohibit Navajo and Montana

Refining from using the emissions reductions that will result from the installation and operation

of the controls required by this Consent Decree (“CD Emissions Reductions”) for the purpose of

emissions netting or emissions offsets, while still allowing Navajo and Montana Refining to use

a fraction of the CD Emissions Reductions if: (1) the emissions units for which Navajo and/or

Montana Refining seek to use the CD Emissions Reductions are modified or constructed for

purposes of compliance with Tier II gasoline or low sulfur diesel requirements; and (2) the

emissions from those modified or newly-constructed units are below the levels outlined in

Paragraph 26.C.ii at the time of the permit application.

B. General Prohibition. Navajo and Montana Refining shall not generate or use any

NOx, SO2, PM, VOC, or CO emissions reductions that result from any projects conducted or

controls required pursuant to this Consent Decree as netting reductions or emissions offsets in

any PSD, major non-attainment and/or minor New Source Review (“NSR”) permit or permit

proceeding.

C. Exception to General Prohibition.

i. Conditions Precedent to Utilization of the Exception to the General Prohibition against

the Use or Generation of CD Emissions Reductions. Utilization of the exception set forth in
92

Paragraph 26.C.ii to the general prohibition against the generation or utilization of CD Emissions

Reductions set forth in Paragraph 26.B. is subject to the following conditions:

a. Under no circumstances shall Navajo and/or Montana Refining use CD Emissions

Reductions for netting and/or offsets prior to the time that actual CD Emissions

Reductions have occurred;

b. CD Emissions Reductions may be used only at the Covered Refinery that

generated them;

c. The CD Emissions Reductions provisions of this Consent Decree are for purposes

of this Consent Decree only and neither Navajo, Montana Refining, nor any other

entity may use CD Emissions Reductions for any purpose, including in any

subsequent permitting or enforcement proceeding, except as provided herein; and

d. Navajo and Montana Refining still shall be subject to all federal and state

regulations applicable to the PSD, major non-attainment and/or minor NSR

permitting process.

ii. Exception to General Prohibition. Notwithstanding the general prohibition set forth in

Paragraph 26.B, Navajo and Montana Refining may use 10 tons per year of NOx and 20 tons per

year of SO2 from the CD Emissions Reductions as credits or offsets in any PSD, major

non-attainment and/or minor NSR permit or permit proceeding occurring after the Date of

Lodging of the Consent Decree, provided that the new or modified emissions unit: (1) is being

constructed or modified for purposes of compliance with Tier 2 gasoline or low sulfur diesel

requirements; and (2) already has emissions limits at the time of permitting as follows:

a. For heaters and boilers, a limit of 0.020 lbs NOx per million BTU or less on a

3-hour rolling average basis; 

b. For heaters and boilers, a limit of 0.10 grains of hydrogen sulfide per dry standard

cubic foot of fuel gas or 20 ppmvd SO2 corrected to 0% O2 both on a 3-hour

rolling average;

c. For heaters and boilers, no liquid or solid fuel firing capabilities;

d. For FCCUs, a limit of 20 ppmvd NOx corrected to 0% O2 or less on a 365-day

rolling average basis;
93

e. For FCCUs, a limit of 25 ppmvd SO2 corrected to 0% O2 or less on a 365-day

rolling average basis; and

f. For SRPs, NSPS Subpart J emission limits.

D. Outside the Scope of the General Prohibition. Nothing in this Section VI is

intended to prohibit Navajo or Montana Refining from seeking to: (1) utilize or generate

emissions credits or reductions from refinery units that are covered by this Consent Decree to the

extent that the proposed credits or reductions represent the difference between the emissions

limitations set forth in this Consent Decree for these refinery units and the more stringent

emissions limitations that Navajo or Montana Refining may elect to accept for these refinery

units in a permitting process; or (2) utilize or generate emissions credits or reductions on refinery

units that are not covered by this Consent Decree.

VII. MODIFICATIONS TO IMPLEMENTATION SCHEDULES

27. Securing Permits. For any work under Sections V or VIII of this Consent Decree

that requires a federal, state and/or local permit or approval, Navajo and/or Montana Refining, as

applicable, shall be responsible for submitting in a timely fashion applications for federal, state

and local permits and approvals for work and activities required so that permit or approval

decisions can be made in a timely fashion. Navajo and/or Montana Refining, as applicable, shall

use its/their best efforts to: (i) submit permit applications (i.e., applications for permits to

construct, operate, or their equivalent) that comply with all applicable requirements; and

(ii) secure approval of permits after filing the applications, including timely supplying additional

information, if requested. If it appears that the failure of a governmental entity to act upon a

timely-submitted permit application may delay Navajo’s or Montana Refining’s performance of 

work according to an applicable implementation schedule, Navajo and/or Montana Refining, as
94

applicable, shall notify the Applicable Federal and State Agencies of any such delays as soon as

Navajo and/or Montana Refining, as applicable, reasonably concludes that the delay could affect

its/their ability to comply with the implementation schedule set forth in this Consent Decree. 

Navajo and/or Montana Refining, as applicable, shall propose for approval by EPA a

modification to the applicable schedule of implementation. EPA, in consultation with the

Applicable State Agency, shall not unreasonably withhold its consent to requests for

modifications of schedules of implementation if the requirements of this Paragraph are met. All

modifications to any dates initially set forth in this Decree or in any approved schedule of

implementation shall be signed in writing by EPA and Navajo and/or Montana Refining, as

applicable, and neither the United States nor Navajo nor Montana Refining, as applicable, shall

be required to file such modifications with the Court in order for the modifications to be

effective. Stipulated penalties shall not accrue nor be due and owing during any period between

an originally-scheduled implementation date and an approved modification to such date;

provided however, that Applicable Federal and State Agencies shall retain the right to seek

stipulated penalties if EPA does not approve a modification to a date or dates. The failure of a

governmental entity to act upon a timely-submitted permit or approval application shall not

constitute a force majeure event triggering the requirements of Section XIV; this Paragraph shall

apply.

28. Commercial Unavailability of Control Equipment and/or Additives. Navajo

and/or Montana Refining, as applicable, shall be solely responsible for compliance with any

deadline or the performance of any work described in Sections V and VIII of this Consent Decree

that requires the acquisition and installation of control equipment and/or catalyst additive. If it

appears that the commercial unavailability of any control equipment and/or catalyst additive may
95

delay Navajo’s or Montana Refining’s performance of work according to an applicable

implementation schedule, Navajo and/or Montana Refining, as applicable, shall notify the

Applicable Federal and State Agencies of any such delays as soon as Navajo and/or Montana

Refining, as applicable, reasonably concludes that the delay could affect its/their ability to

comply with the implementation schedule set forth in this Consent Decree. Navajo and/or

Montana Refining, as applicable, shall propose for approval by EPA a modification to the

applicable schedule of implementation. Prior to the notice required by this Paragraph 28, Navajo

and/or Montana Refining, as applicable, must have contacted a reasonable number of vendors of

such equipment or additive and obtained a written representation (or equivalent communication

to EPA) from the vendor that the equipment or additive is commercially unavailable. In the

notice, Navajo and/or Montana Refining, as applicable, shall reference this Paragraph 28 of this

Consent Decree, identify the milestone date(s) it/they contend it/they will not be able to meet,

provide the Applicable Federal and State Agencies with written correspondence to the vendor

identifying efforts made to secure the control equipment or catalyst additive, and describe the

specific efforts Navajo and/or Montana Refining, as applicable, has taken and will continue to

take to find such equipment or additive. Navajo and/or Montana Refining, as applicable, may

propose a modified schedule or modification of other requirements of this Consent Decree to

address such commercial unavailability. Section XV (“Retention of Jurisdiction/Dispute

Resolution”) shall govern the resolution of any claim of commercial unavailability. EPA, in

consultation with the Applicable State Agency, shall not unreasonably withhold its consent to

requests for modifications of schedules of implementation if the requirements of this Paragraph

are met. All modifications to any dates initially set forth in this Consent Decree or in any

approved schedule of implementation shall be signed in writing by EPA and Navajo and/or
96

Montana Refining, as applicable, and neither the United States nor Navajo nor Montana Refining

shall be required to file such modifications with the Court in order for the modifications to be

effective. Stipulated penalties shall not accrue nor be due and owing during any period between

an originally-scheduled implementation date and an approved modification to such date;

provided however, that the Applicable Federal and State Agencies shall retain the right to seek

stipulated penalties if EPA does not approve a modification to a date or dates. The failure by

Navajo and/or Montana Refining, as applicable, to secure control equipment and/or catalyst

additive shall not constitute a force majeure event triggering the requirements of Section XIV;

this Paragraph shall apply.

VIII. ENVIRONMENTALLY BENEFICIAL PROJECTS

29. Compliance with NSPS Subpart QQQ at the Artesia and Lovington Refineries.

A. Plan to Comply with NSPS Subpart QQQ. By no later than 180 days after the Date of

Lodging of the Consent Decree, Navajo shall submit a plan to EPA and the NMED that sets forth

with specificity the actions, including but not limited to, the installation of any necessary control

equipment, that Navajo will take to ensure that the Artesia and Lovington Refineries comply, by

no later than December 31, 2003, with the requirements of the NSPS at Subpart QQQ, 40 C.F.R.

§§ 60.690 - 60.699, The plan shall include a proposed schedule of implementation for the

installation of any necessary control equipment. The plan shall also include proposed schedules

for compliance with the monitoring, testing, recordkeeping, and reporting requirements of 40

C.F.R. §§ 60.695 - 60.698. The plan shall be subject to the approval of, disapproval of, or

modification by EPA, which shall act in consultation with the NMED. Within sixty (60) days

after receiving any notification of disapproval or request for modification from EPA, Navajo

shall submit to EPA and the NMED a revised plan that responds to all identified deficiencies. 
97

Upon receipt of approval or approval with conditions, Navajo shall implement the plan. 

Disputes arising under this Paragraph 29 shall be resolved in accordance with the dispute

resolution provisions of this Decree.

B. NSPS Applicability. By no later than December 31, 2003, the individual drain

systems, oil-water separators, and aggregate facilities, as those terms are defined at 40 C.F.R.

§ 60.691, at the Artesia and Lovington Refineries shall be affected facilities, as that term is used

in the NSPS, 40 C.F.R. Part 60, and shall be subject to and comply with the requirements of 40

C.F.R. Part 60, Subpart QQQ.

30. Operation of the 40 LTD Sulfur Recovery Unit at the Artesia Refinery on Hot

Standby. By no later than December 31, 2003, Navajo shall complete the installation of all

equipment, piping, instrumentation, and controls necessary to permit Navajo to operate the

40 LTD sulfur recovery unit at the Artesia Refinery continuously on “hot” stand-by. By no later

than February 28, 2004, Navajo will submit to EPA and the NMED a plan to study how to limit

Acid Gas Flaring and emissions in excess of 250 ppm SO2 from the TGU during the limited

periods in which the Artesia SRP experiences a Malfunction. The study plan shall include a

schedule for implementation that Navajo will implement. Navajo shall incorporate the results of

this study into the Preventative Maintenance and Operation Plan (“PMO Plan”) that Navajo

prepares pursuant to the requirements of Paragraph 20.D.

31. Installation of an Additional Wet Gas Compressor at the Artesia FCCU. By no

later than December 31, 2003, Navajo shall complete the installation of an additional wet gas

compressor at the Artesia FCCU. Navajo shall operate the additional wet gas compressor so as

to minimize the duration of any AG or HC Flaring Incidents associated with outages of the

original wet gas compressor.
98

32. Community SEPs for Navajo. Navajo shall conduct one or more supplemental

environmental projects, such as odor control, wildlife habitat restoration, and/or water quality

improvement, designed to benefit the community of Artesia. Navajo shall submit for EPA’s and

NMED's approval a detailed written proposal for each project. The total value of the project(s)

shall equal or exceed $200,000. Upon written approval of EPA and the NMED, Navajo shall

implement the project(s) and submit a cost report, certified as accurate under penalty of perjury

by the responsible corporate official, upon its/their completion. Navajo shall complete the

project(s) by June 30, 2003, unless NMED approves in writing an extension to this deadline. If

Navajo does not expend the entire $200,000 by June 30, 2003, or a later date approved by NMED

as specified above, Navajo shall pay a stipulated penalty equal to the difference between the

amount expended as demonstrated in the certified cost report(s) and $200,000. The stipulated

penalty shall be paid to the State of New Mexico by corporate or certified check at the address

specified in Section X (Civil Penalty) of the Consent Decree. 

33. Environmental Management System Baseline Assessment for Navajo.

A. Conduct of Baseline Assessment. Navajo agrees to retain and pay an independent

consultant (“Independent Consultant”) to conduct an Environmental Management System

(“EMS”) Baseline Assessment, prepare audit and evaluation reports, and make recommendations

for improvement of the environmental management system at the Artesia Refinery. 

B. Scope of Work.

i. Baseline Assessment. The baseline assessment shall evaluate the following aspects of

refinery management related to environmental compliance and management and may evaluate

any other aspect of refinery management which the Independent Consultant finds relevant and

appropriate, including but not limited to:
99

a. formal and informal corporate environmental compliance policies, practices and

procedures;

b. formal and informal corporate policies, practices, and procedures which affect

environmental compliance; 

c. educational and training programs for managers and employees; 

d. equipment purchase, operation and maintenance, and inventory control programs; 

e. policies, practices, and procedures regarding communication and coordination

between production and environmental compliance personnel; 

f. environmental compliance officer programs; 

g. budgeting and planning systems for environmental compliance; 

h. monitoring, record keeping, and reporting systems; 

i. in-plant and community emergency plans; 

j. other internal communication and control systems; and 

k. systems for hazard identification and risk assessment.

ii. Baseline Assessment Report.

a. The baseline assessment report shall address each aspect of refinery management

described above and any other aspect of refinery management which the Independent Consultant

deems relevant and appropriate.

b. For any aspect of Navajo’s refinery management which the Independent Consultant

believes should be improved, the baseline assessment report shall make specific

recommendations for improvement and specify a schedule for implementation. The schedule of

implementation shall take into account the schedule for installation of pollution control

equipment under the Consent Decree, as appropriate.
100

C. Selection of Independent Consultant. Navajo shall propose to NMED one or more

persons or firms to be the Independent Consultant. The person(s) or firm(s) shall demonstrate

competence and technical proficiency in the conduct of environmental management system

baseline assessments and audits. Navajo shall not execute a contract under Paragraph 33.D until

NMED approves in writing the person or firm to be the Independent Consultant, which approval

shall not be unreasonably withheld. In approving a person or firm to be the Independent

Consultant, NMED may consider any relevant factor, including but not limited to competence

and technical proficiency and the relationship between the Independent Consultant and Navajo.

D. Contract with Independent Consultant.

i. Within one hundred twenty (120) days of the Date of Lodging of the Consent Decree,

Navajo shall execute a contract, approved by NMED, with the Independent Consultant. 

ii. Navajo shall submit a copy of the executed contract to the NMED. 

iii. Navajo shall provide a copy of this Consent Decree to the Independent Consultant

before execution of the contract.

E. Baseline Assessment Report. Within two hundred and ten (210) days of the Date of

Lodging of the Consent Decree, the Independent Consultant shall prepare and submit the baseline

assessment report to Navajo.

F. Implementation of Recommendations.

i. Navajo shall implement all recommendations according to the schedule for

implementation, except as provided in Paragraph 33.G.

ii. Beginning on December 31, 2002, Navajo shall prepare a quarterly progress report

describing its implementation of recommendations. 
101

iii. On June 30, 2003, June 30, 2004, and after the implementation of all

recommendations, the Independent Consultant shall prepare an evaluation report regarding

Navajo's implementation of recommendations. The evaluation report shall, as necessary,

describe any additional recommendations and a schedule of implementation. Navajo shall

implement these recommendations and provide progress reports as described above, except as

provided in Paragraph 33.G.

G. Dispute Resolution.

i. Within thirty days after the Independent Consultant submits the baseline assessment

report or evaluation report, Navajo shall advise NMED, in writing, of any recommendation or

schedule for implementation which Navajo believes to be illegal or economically or technically

impractical.

ii. If NMED disagrees with Navajo’s objection to a recommendation or schedule for

implementation, NMED shall notify Navajo of the disagreement. NMED and Navajo shall meet

within fifteen days of the notification to informally resolve the disagreement. The Independent

Consultant shall prepare for and attend the meeting at Navajo’s expense.

iii. If NMED and Navajo cannot informally resolve the disagreement, the objection shall

be submitted for arbitration. Within fifteen days of such submittal, each party shall select one

arbitrator, who shall, within thirty days, select by mutual agreement a third arbitrator who shall

conduct the arbitration pursuant to the current rules of the American Arbitration Association

(“AAA”). All expedited procedures prescribed by AAA rules shall apply. The Independent

Consultant shall defend its recommendation or schedule for implementation at the arbitration. 

The arbitrator shall require a recommendation or schedule for implementation unless Navajo

demonstrates, by a preponderance of the evidence, that the recommendation or schedule for
102

implementation is illegal or economically or technically impractical, but the arbitrator may revise

the recommendation or schedule for implementation to avoid such illegality or economic or

technical impracticality. The arbitrator’s decision shall be final and binding. Navajo shall bear

the cost of arbitration, including the NMED's and Independent Consultant’s preparation for and

attendance at the arbitration.

iv. Within thirty days of the informal resolution or arbitrator’s determination, whichever

comes last, the Independent Consultant shall revise the baseline assessment report or evaluation

report to reflect a revised or deleted recommendation or schedule for implementation. Navajo

shall bear the cost of the Independent Consultant’s revision of the baseline assessment report or

evaluation report.

H. Extensions of Time. Navajo may extend the time to conduct an action under

Paragraph 33 with the written approval of NMED, which approval shall not be unreasonably

withheld.

I. Stipulated Penalties for Paragraph 33.

i. Navajo shall pay a stipulated penalty of one thousand dollars ($1,000.00) for each day

that it fails to comply with any deadline set forth in the Paragraph 33.

ii. Navajo shall pay a stipulated penalty, on the schedule specified below, for each day

that it fails to implement a recommendation according to the schedule for implementation in the

baseline assessment or evaluation report except: (1) as modified by Paragraph 33.G; or (2) during

the pendency of dispute resolution under Paragraph 33.G.

Days 0-10 $1,000.00

Days 11-30 $2,000.00

Days 31+ $5,000.00
103

iii. Navajo shall pay any stipulated penalty due under this section in a lump sum to the

State of New Mexico by certified check or other guaranteed negotiable instrument within fifteen

days of notification by NMED. If Navajo fails to make a timely and complete payment due

under this Paragraph 33.I, Navajo shall pay interest on the outstanding balance at the rate

established for judgments and decrees under NMSA 1978 § 56-8-4 (1993). All payments shall

be sent to NMED at the following address:

General Counsel

Office of General Counsel

New Mexico Environment Department

P.O. Box 26110

1190 St. Francis Drive

Santa Fe, NM 87502-6110
104

J. Maintenance and Distribution of Reports.

i. Navajo shall maintain copies of the baseline assessment report, progress reports,

evaluation reports, and arbitration documents at the Artesia Refinery and the Holly corporate

office in Dallas, Texas.

ii. Navajo shall allow the NMED to inspect the baseline assessment report, progress

reports, evaluation reports, and arbitration documents at the Artesia Refinery and the Holly

corporate office during normal business hours. 

iii. NMED shall not copy, transcribe, or make notes of the baseline assessment report,

progress reports, evaluation reports, and arbitration documents except that Navajo agrees that

NMED may copy and disclose the relevant portion of any report or document in connection with

an action to enforce this Consent Decree.

iv. Navajo shall provide a copy of each progress report to the Independent Consultant

within five working days of completion.

34. By signing this Consent Decree, Navajo certifies that it is not required, and has no

liability under any federal, state or local law or regulation or pursuant to any agreements or orders

of any court, to perform or develop any of the projects identified in Paragraphs 32 and 33. 

Navajo further certifies that it has not applied for or received, and will not in the future apply for

or receive: (1) credit as a Supplemental Environmental Project or other penalty offset in any other

enforcement action for the projects set forth in Paragraphs 29 - 33; or (2) credit for any emissions

reductions resulting from the projects set forth in Paragraphs 29 - 33 in any federal, state or local

emissions trading or early reduction program.
105

35. The Calendar Quarterly Report required by Paragraph 37 of this Consent Decree for

the calendar quarter in which each project identified in Paragraphs 29 - 33 is completed shall

contain the following information with respect to such projects:

i. A detailed description of each project as implemented;

ii. A brief description of any significant operating problems encountered, including

any that had an impact on the environment, and the solutions for each problem;

iii. Certification that each project has been fully implemented pursuant to the

provisions of this Consent Decree; and

iv. A description of the environmental and public health benefits resulting from

implementation of each project (including quantification of the benefits and

pollutant reductions, if feasible).

36. Navajo agrees that in any public statements regarding these beneficial environmental

projects, Navajo must clearly indicate that these projects are being undertaken as part of the

settlement of an enforcement action for alleged violations of the Clean Air Act and the New

Mexico Air Quality Control Act.

IX. REPORTING AND RECORDKEEPING

37. Beginning with the first full calendar quarter after the Date of Entry of the Consent

Decree, Navajo and Montana Refining shall submit to Applicable Federal and State Agencies

within thirty (30) days after the end of each calendar quarter until termination of this Consent

Decree a calendar quarterly progress report (“Calendar Quarterly Report”) for each Covered

Refinery. This calendar quarterly report shall contain, for each Covered Refinery, the following: 

progress report on the implementation of the requirements of Section V (Affirmative

Relief/Environmental Projects); a summary of the emissions data as required by Section V of this

Consent Decree for the calendar quarter; a description of any problems anticipated with respect

to meeting the requirements of Section V of this Consent Decree; a description of all
106

environmentally beneficial projects and implementation activity in accordance with Paragraphs

29 - 33 of the Consent Decree; and any such additional matters as Navajo and Montana Refining

believe should be brought to the attention of the Applicable Federal and State Agencies. Each

portion of the calendar quarterly report which relates to a particular Covered Refinery shall be

certified by either the person responsible for environmental management and compliance for that

Covered Refinery, or by a person responsible for overseeing implementation of this Decree

across Navajo and Montana Refining, as follows:

I certify under penalty of law that this information was prepared under my direction or

supervision in accordance with a system designed to assure that qualified personnel

properly gather and evaluate the information submitted. Based on my directions and my

inquiry of the person(s) who manage the system, or the person(s) directly responsible for

gathering the information, the information submitted is, to the best of my knowledge and

belief, true, accurate, and complete.

X. CIVIL PENALTY

38. In satisfaction of the civil claims asserted by the United States and the

Plaintiff-Intervenors in the complaint filed in this matter, within thirty (30) days of the Date of

Entry of the Consent Decree, Navajo and Montana Refining shall pay a civil penalty of $400,000

as follows: (1) $200,000 to the United States; (2) $160,000 to the State of New Mexico; and

(3) $40,000 to the State of Montana.

A. Payment of monies to the United States shall be made by Electronic Funds Transfer

("EFT") to the United States Department of Justice, in accordance with current EFT procedures,

referencing USAO File Number 2001 V 00679, DOJ Case Number 90-5-2-1-2228/1, and the

civil action case name and case number of this action in the District of New Mexico. The costs

of such EFT shall be the responsibility of Navajo and Montana Refining. Payment shall be made

in accordance with instructions provided to Navajo and Montana Refining by the Financial
107

Litigation Unit of the U.S. Attorney's Office for the District of New Mexico. Any funds received

after 11:00 a.m. (EST) shall be credited on the next business day. Navajo and Montana Refining

shall provide notice of payment, referencing USAO File Number 2001 V 00679, DOJ Case

Number 90-5-2-1-2228/1, and the civil action case name and case number to the Department of

Justice and to EPA, as provided in Paragraph 91 (Notice).

B. Payment of the civil penalty owed to the State of New Mexico under this Paragraph

shall be made by certified or corporate check made payable to the State of New Mexico and sent

to the following address:

General Counsel

Office of General Counsel

New Mexico Environment Department

P.O. Box 26110

1190 St. Francis Drive

Santa Fe, NM 87502-6110

C. Payment of the civil penalty owed to the State of Montana under this Paragraph shall

be made by certified check made payable to the State of Montana and sent to the following

address:

John L. Arrigo

Administrator

Enforcement Division

Montana Department of Environmental Quality

P.O. Box 200901

Helena, MT 59620-0901

39. In satisfaction of the claims asserted by the NMED in the May 10, 2001, and July 27,

2001 NMED Compliance Orders, within thirty (30) days of the Date of Entry of the Consent

Decree, Navajo shall pay a civil penalty of $350,000 to the State of New Mexico in accordance

with the procedures set forth in Paragraph 38.B.
108

40. The civil penalty set forth herein is a penalty within the meaning of Section 162(f) of

the Internal Revenue Code, 26 U.S.C. § 162(f), and, therefore, neither Navajo nor Montana

Refining shall treat these penalty payments as tax deductible for purposes of federal, state, or

local law.

41. Upon the Date of Entry of the Consent Decree, the Consent Decree shall constitute

an enforceable judgment for purposes of post-judgment collection in accordance with Federal

Rule of Civil Procedure 69, the Federal Debt Collection Procedure Act, 28 U.S.C. §§ 3001-3308,

and other applicable federal authority. The United States, New Mexico, and Montana shall be

deemed judgment creditors for purposes of collecting any unpaid amounts of the civil and

stipulated penalties and interest. 

XI. STIPULATED PENALTIES 

42. Navajo and/or Montana Refining, as applicable, shall pay stipulated penalties for

each failure by Navajo and/or Montana Refining, as applicable, to comply with the terms of this

Consent Decree as provided herein. Stipulated penalties shall be calculated in the amounts

specified in Paragraphs 43 through 59. At the start of each Subparagraph, the Defendant(s) that

may be subject to stipulated penalties pursuant to that Subparagraph is identified. For purposes

of seeking stipulated penalties under Paragraphs 43.B, 44.C, and 46.A, stipulated penalties shall

not start to accrue until there is noncompliance with the concentration-based, rolling average

emission limit identified in the Subparagraph for 5% or more of the applicable unit’s operating

time during any calendar quarter. For those provisions where a stipulated penalty of either a

fixed amount or 1.2 times the economic benefit of delayed compliance is available, the decision

of which alternative to seek shall rest exclusively within the discretion of the Applicable Federal

and State Agencies. If the requirements of Paragraphs 16 or 20 ever become applicable to
109

Montana Refining, then the stipulated penalties provisions of Paragraphs 47 and 51 shall take

effect as to Montana Refining, except that the amount of stipulated penalties set forth in

Paragraphs 47.A-D and Paragraphs 51.B and 51.D shall be halved.

43. Paragraph 11 - Requirements for NOx Emission Reductions from FCCUs.

A. Navajo and Montana Refining. For failure to select and/or use NOx Reducing

Catalyst Additives or Low NOx Combustion Promotors as required by Paragraph 11, and, for

Navajo, Appendix D, of the Consent Decree, per day:

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day after deadline $1000 $500

31st through 60th day after deadline $1500 $750

Beyond 60th day after deadline $2000 for Navajo, and $1000 for Montana Refining,

or, for either, an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater

B. Navajo and Montana Refining. For failure to meet any emissions limit proposed by

Navajo or Montana Refining, as applicable, or established by EPA (final or interim) for NOx

pursuant to Paragraph 11, per day, per unit: $750 (for Navajo) and $300 (for Montana Refining)

for each calendar day in a calendar quarter on which the specified 3-hour rolling average exceeds

the applicable limit; and $2500 (for Navajo) and $1250 (for Montana Refining) for each calendar

day in a calendar quarter on which the specified 365-day rolling average exceeds the applicable

limit.

C. Navajo and Montana Refining. For failure to prepare and/or submit written

deliverables required by Paragraph 11, per day:

Period of Delay Penalty per day Penalty per day
110

for Navajo for Montana Refining

1st through 30th day after deadline $200 $100

31st through 60th day after deadline $500 $250

Beyond 60th day after deadline $1000 $500

D. Navajo and Montana Refining. For failure to install and/or certify a NOx CEMS, per

unit, per day:

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day after deadline $500 $250

31st through 60th day after deadline $1000 $500

Beyond 60th day after deadline $2000 for Navajo, and $1000 for Montana Refining

or, for either, an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater.

44. Paragraph 12 - Requirements for SO2 Emission Reductions from FCCUs.

A. Navajo. For failure to install a wet gas scrubber at the Artesia Refinery as required by

Paragraph 12.B of this Consent Decree, per day:
111

Period of Delay Penalty per day

1st through 30th day after deadline $1250 

31st through 60th day after deadline $3000 

Beyond 60th day after deadline $5000, or an amount equal to 1.2 times the

economic benefit of the delayed compliance

whichever is greater

B. Montana Refining. For failure to select and/or use SO2 Reducing Catalyst Additive at

the Great Falls Refinery as required by Paragraph 12.C of the Consent Decree, per day: 

Period of Delay Penalty per day

1st through 30th day after deadline $500

31st through 60th day after deadline $750

Beyond 60th day $1000, or an amount equal to 1.2 times the

economic benefit of the delayed compliance

whichever is greater

C. Navajo and Montana Refining. For each failure to meet SO2 emission limits

established for the Artesia FCCU in Paragraph 12.B and/or each failure to meet SO2 emission

limits proposed by Montana Refining or established by EPA (final or interim) pursuant to

Paragraph 12.C, per day, per unit: $1500 (for Navajo) and $300 (for Montana Refining) for each

calendar day in a calendar quarter on which the specified 7-day rolling average exceeds the

applicable limit; $3000 (for Navajo) and $1250 (for Montana Refining) for each calendar day in

a calendar quarter on which the specified 365-day rolling average exceeds the applicable limit.

D. Navajo and Montana Refining. For failure to prepare and/or submit written

deliverables required by Paragraph 12, per day:
112

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day after deadline $200 $100

31st through 60th day after deadline $500 $250

Beyond 60th day after deadline $1000 $500

E. Navajo and Montana Refining. For failure to install and/or certify a SO2 CEMS, per

unit, per day:

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day after deadline $500 $250

31st through 60th day after deadline $1000 $500

Beyond 60th day after deadline $2000 for Navajo, and $1000 for Montana Refining,

or, for either, an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater.

45. Paragraph 13 - Requirements for PM Emissions Reductions from FCCUs.

A. Navajo. For failure to install a wet gas scrubber at the Artesia Refinery as required by

Paragraph 13.B of this Consent Decree, the same stipulated penalties as those in Paragraph 44.A

shall apply (stipulated penalties may be sought pursuant to only Paragraph 44 or 45, not both).

B. Montana Refining. For failure to conduct performance tests in accordance with the

requirements of Paragraph 13.C, per day:

Period of Delay Penalty per day

1st through 30th day after deadline $200

31st through 60th day after deadline $400

Beyond 60th day after deadline $1000
113

C. Montana Refining. For failure to install a TSS or control technology equivalent in

PM control effectiveness if such installation is required pursuant to the provisions of

Paragraph 13.C, per day:

Period of Delay Penalty per day

1st through 30th day after deadline $500

31st through 60th day after deadline $750

Beyond 60th day $1000, or an amount equal to 1.2 times the

economic benefit of the delayed compliance

whichever is greater

46. Paragraph 14 – Requirements for CO Emissions Reductions from FCCUs.

A. Navajo and Montana Refining. For each failure to meet the CO emission limits

established for the Artesia and Great Falls FCCUs in Paragraph 14.B: $500 (for Navajo) and

$200 (for Montana Refining) for each calendar day in a calendar quarter on which the specified

1-hour rolling average exceeds the applicable limit; and $2500 (for Navajo) and $1250 (for

Montana Refining) for each calendar day in a calendar quarter on which the specified 365-day

rolling average exceeds the applicable limit.

B. Navajo and Montana Refining. For failure to install and/or certify a CO CEMS, per

unit, per day:
114

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day after deadline $500 $250

31st through 60th day after deadline $1000 $500

Beyond 60th day after deadline $2000 for Navajo, and $1000 for Montana Refining,

or, for either, an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater.

47. Paragraph 16 – Requirements for NOx Emission Reductions from Heaters and

Boilers.

A. Navajo. For failure to install required NOx Control Technology by the dates specified

in Paragraph 16.B and Appendix C, per unit, per day:

Period of Delay Penalty per day

1st through 30th day after deadline $500

31st through 60th day after deadline $1200

Beyond 60th day after deadline $2,000, or an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater.

B. Navajo. For failure to install and/or certify a CEMS or a parametric emission

monitoring system on a Controlled Heater or Boiler by the required deadline, per unit, per day:

Period of Delay Penalty per day

1st through 30th day after deadline $ 450

31st through 60th day after deadline $1000

Beyond 60th day after deadline $2000, or an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater. 
115

C. Navajo. For failure to submit the written deliverables required by Paragraph 16, per

day:

Period of Delay Penalty per day

1st through 30th day after deadline $200

31st through 60th day after deadline $500

Beyond 60th day $1000

D. Navajo. For each failure to meet NOx emission limits proposed by Navajo pursuant

to Paragraph 16.D, per day, per unit: $500 for each calendar day in a calendar quarter on which

the specified 3-hour average exceeds the applicable limit.

48. Paragraph 17 - Requirements for SO2 Emission Reductions from Heaters and

Boilers.

A. Navajo and Montana Refining. After the date set forth in this Decree for NSPS

applicability of any fuel gas combustion device, for burning any refinery fuel gas that contains

hydrogen sulfide in excess of 0.1 grains per dry standard cubic foot on a 3-hour rolling average at

any fuel gas combustion device, per Covered Refinery, per day in a calendar quarter:

Period of Non-Compliance Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 5th day $1000 $300

6th through 15th day $2000 $750

Over 15 days $3000 for Navajo, and $1000 for Montana Refining,

or, for either, an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater.

B. Montana Refining. For failure to install and/or certify a fuel gas CEMS, per unit, per

day:
116

Period of Delay Penalty per day

1st through 30th day after deadline $250

31st through 60th day after deadline $500

Beyond 60th day after deadline $1000, or an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater.

C. Navajo and Montana Refining. For burning Fuel Oil in a manner inconsistent with

the requirements of Paragraph 17.C, per Covered Refinery, per day:

Period of Non-Compliance Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day $1750 $500

Beyond 31st day $5000 $2000

49. Paragraph 18 – Requirements for NSPS Applicability of Sulfur Recovery Plant.

A. Navajo. For failure to route all sulfur pit emissions in accordance with the

requirements of Paragraph 18.B, per day:

Period of Non-Compliance Penalty per day

1st through 30th day $1000 

31st through 60th day $1750

Beyond 60th day $4000 or an amount equal to 1.2 times the 

amount of delayed compliance whichever is 

greater. 

B. Navajo. For failure to comply with the NSPS Subpart J emission limits, per day in a

calendar quarter:

Period of Non-Compliance Penalty per day

1st through 5th day $1000
117

6th through 15th day $2000

Over 15 days $3000 or an amount equal to 1.2 times the

economic benefit of delayed compliance,

whichever is greater.

C. Navajo. For failure to develop and comply with the Preventive Maintenance and

Operation Plan as specified in Paragraph 21.D, per day: 

Period of Delay or Non-Compliance Penalty per day

1st through 30th day after deadline $500

Beyond 31st day after deadline $1500

Beyond 60th day after deadline $2000

D. Navajo. For failure to submit the optimization study as specified in Paragraph 21.E,

per day:

Period of Delay Penalty per day

1st through 30th day after deadline $500

Beyond 31st day after deadline $1500

Beyond 60th day after deadline $2000

50. Paragraph 19 – Requirements for NSPS Applicability of Flaring Devices.

A. Navajo. For failure to achieve NSPS compliance for the Lovington Flare (FL-1001)

by December 31, 2006, and for the GOHT Flare (FL-403) by the date of installation, per unit, per

day:
118

Period of Delay Penalty per day

1st through 30th day after deadline $ 500 per day 

31st through 60th day after deadline $1500 per day 

Beyond 60th day after deadline $2000 per day 

B. Navajo and Montana Refining. For failure to install and/or certify a CEMS or submit

and comply with an AMP, at flares that combust continuous or intermittent, routinely-generated

refinery fuel gases, per unit, per day:

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day after deadline $500 $250

31st through 60th day after deadline $1000 $500

Beyond 60th day after deadline $2000 for Navajo, and $1000 for Montana Refining

or, for either, an amount equal to 1.2 times the

economic benefit of delayed compliance, whichever

is greater.

51. Paragraph 20 – Requirements for Control of Acid Gas Flaring Incidents and

Tail Gas Incidents.

A. Navajo. For AG Flaring Incidents and/or Tail Gas Incidents for which Navajo is

liable under Paragraphs 22.C and/or 22.E:
119

Tons Emitted in

Flaring Incident or

Tail Gas Incident

Length of Time from

Commencement of

Flaring within the

Flaring Incident to

Termination of

Flaring within the

Flaring Incident is 3

hours or less; Length

of Time of the Tail

Gas Incident is 3

hours or less

Length of Time from

Commencement of

Flaring within the

Flaring Incident to

Termination of

Flaring within the

Flaring Incident is

greater than 3 hours

but less than or equal

to 24 hours; Length

of Time of the Tail

Gas Incident is

greater than 3 hours

but less than or equal

to 24 hours

Length of Time of

Flaring within the

Flaring Incident is

greater than 24 hours;

Length of Time of

the Tail Gas Incident

is greater than 24

hours

5 Tons or less $500 per Ton $750 per Ton $1,000 per Ton

Greater than 5 Tons,

but less than or equal

to 15 Tons

$1,200 per Ton $1,800 per Ton $2,300 per Ton, up

to, but not exceeding,

$27,500 in any one

calendar day

Greater than 15 Tons $1,800 per Ton, up

to, but not exceeding,

$27,500 in any one

calendar day

$2,300 per Ton, up

to, but not exceeding, 

$27,500 in any one

calendar day

$27,500 per calendar

day for each calendar

day over which the

Flaring Incident lasts

For purposes of calculating stipulated penalties pursuant to this Paragraph 51.A, only one cell

within the matrix shall apply. Thus, for example, for a Flaring Incident in which the Flaring

starts at 1:00 p.m. and ends at 3:00 p.m., and for which 14.5 tons of sulfur dioxide are emitted,

the penalty would be $17,400 (14.5 x $1,200); the penalty would not be $13,900 [(5 x $500) +

(9.5 x $1200)]. For purposes of determining which column in the table set forth in this

Paragraph applies under circumstances in which Flaring occurs intermittently during a Flaring

Incident, the Flaring shall be deemed to commence at the time that the Flaring that triggers the

initiation of a Flaring Incident commences, and shall be deemed to terminate at the time of the

termination of the last episode of Flaring within the Flaring Incident. Thus, for example, for
120

Flaring within a Flaring Incident that (i) starts at 1:00 p.m. on Day 1 and ends at 1:30 p.m. on

Day 1; (ii) recommences at 4:00 p.m. on Day 1 and ends at 4:30 p.m. on Day 1;

(iii) recommences at 1:00 a.m. on Day 2 and ends at 1:30 a.m. on Day 2; and (iv) no further

Flaring occurs within the Flaring Incident, the Flaring within the Flaring Incident shall be

deemed to last 12.5 hours -- not 1.5 hours -- and the column for Flaring of “greater than 3 hours

but less than or equal to 24 hours” shall apply.

B. Navajo. For failure to timely submit any report required by Paragraph 20, or for

submitting any report that does not conform to the requirements of Paragraphs 20:

Period of Delay Penalty per day

Days 1-30 $800 

Days 31-60 $1,600

Over 60 days $3,000

C. Navajo. For those corrective action(s) which Navajo: (i) agrees to undertake

following receipt of an objection by EPA pursuant to Paragraph 20.B.ii and 20.E; or (ii) is

required to undertake following dispute resolution, then, from the date of EPA’s receipt of

Navajo’s report under Paragraphs 20.B or 20.E of this Consent Decree until the date that either:

(i) a final agreement is reached between EPA and Navajo regarding the corrective action; or (ii) a

court order regarding the corrective action is entered, Navajo shall be liable for stipulated

penalties as follows:
121

i. Period of Delay Penalty per day

Days 1-120 $50

Days 121-180 $100

Days 181 - 365 $300

Over 365 Days $3,000

or

ii. 1.2 times the economic benefit resulting from Navajo’s failure to implement the

corrective action(s).

D. Navajo. For failure to complete any corrective action under Paragraph 20 of this

Decree in accordance with the schedule for such corrective action agreed to by Navajo or

imposed on Navajo pursuant to the dispute resolution provisions of this Decree (with any such

extensions thereto as to which EPA and Navajo may agree in writing):

Period of Delay Penalty per day

Days 1-30 $ 1,000

Days 31-60 $ 2,000

Over 60 $ 5,000

52. Paragraph 21 – Requirements for Control of Hydrocarbon Flaring Incidents.

A. Navajo and Montana Refining. For each failure to perform a root cause analysis or

submit a written report or perform corrective actions for a Hydrocarbon Flaring Incident:
122

Period of Delay or Non-Compliance Penalty per day Penalty per day

per Incident per Incident

for Navajo for Montana Refining

1st through 30th day $ 500 $250

31st through 60th day $1500 $750

Beyond 60th day $2000 $1000

53. Paragraph 22 - Requirements for Benzene Waste NESHAP Program

Enhancements. For each violation in which a frequency is specified in Paragraph 22, the

amounts identified below shall apply on the first day of violation, shall be calculated for each

incremental period of violation (or portion thereof), and shall be doubled beginning on the fourth

consecutive, continuing period of violation. For requirements where no frequency is specified,

penalties will not be doubled. For Montana Refining, the amount of stipulated penalties that may

be sought pursuant to this Paragraph 53 shall be one-third of the amounts set forth in this

Paragraph 53.

A. Navajo and Montana Refining. For failure to complete the BWN Compliance Review

and Verification Reports as required by Paragraph 22.C: 

$7,500 per month, per refinery

B. Navajo and Montana Refining. For failure to implement the actions necessary to

correct non-compliance as required by Paragraph 22.D:
123

Period of Delay Penalty per day

1st through 30th day after deadline $1250

31st through 60th day after deadline $3000

Beyond 60th day $5000, or an amount equal to 1.2 times the

economic benefit of delayed compliance,

whichever is greater

C. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr). For failure to

implement the training requirements of Paragraph 22.G:

$10,000 per quarter, per refinery

D. Navajo and Montana Refining. For failure to submit or maintain any records or

materials required by Paragraph 22.H of this Consent Decree: 

$2,000 per record or submission

E. Navajo and Montana Refining (if TAB equals or exceeds 10 Mg/yr). For failure to

install controls on waste management units handling organic wastes as required by

Paragraph 22.H.ii:

$10,000 per month, per waste management unit

F. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr). For failure to

conduct sampling in accordance with the sampling plans required by Paragraphs 22.I (10 Mg/yr

or more) or 22.J (1 Mg/yr or more), as applicable:

$5,000 per week, per stream, or $30,000 per quarter, per stream, whichever is

greater, but not to exceed $150,000 per quarter per refinery

G. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr). For failure to

submit the plan or retain the third-party contractor required by Paragraphs 22.I.viii (10 Mg/yr or 
124

more), 22.J.v (1 Mg/yr or more), or 22.J.vi (1 Mg/yr or more):

$10,000 per month, per refinery 

H. Navajo and Montana Refining (if TAB equals or exceeds 10 Mg/yr). For failure to

comply with the miscellaneous compliance measures set forth in Paragraph 22.K.ii, as follows:

For K.ii.a, monthly visual inspections: $500 per drain not inspected;

For K.ii.b, weekly monitoring of vents: $500 per vent not monitored;

I. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr). For failure to

identify/mark segregated stormwater drains as required in Paragraph 22.K.iii: $1,000 per week

per drain;

J. Navajo and Montana Refining. For failure to submit the written deliverables required

by Paragraph 22.M:

$1,000 per week, per report 

K. Navajo and Montana Refining. If it is determined through federal, state, or local

investigation that a Covered Refinery has failed to include all benzene containing waste streams

in its TAB calculation submitted pursuant to Paragraphs 22.C., Navajo and/or Montana Refining,

as applicable, shall pay the following:

Waste Stream Penalty

for waste streams < 0.03 Mg/yr $250

for waste streams between 0.03 and 0.1 Mg/yr $1000

for waste streams between 0.1 and 0.5 Mg/yr $5,000

for waste streams > 0.5 Mg/yr $10,000
125

54. Paragraph 23 – Requirements for Leak Detection and Repair Program

Enhancements. For each violation in which a frequency is specified in Paragraph 23, the

amounts identified below shall apply on the first day of violation, shall be calculated for each

incremental period of violation (or portion thereof), and shall be doubled beginning on the fourth

consecutive, continuing period of violation. For requirements where no frequency is specified,

penalties will not be doubled. For Montana Refining, the amount of stipulated penalties that may

be sought pursuant to this Paragraph 54 shall be one-third of the amounts set forth in this

Paragraph 54.

A. Navajo and Montana Refining. For failure to implement the training programs

specified in Paragraph 23.B:

$10,000 per month, per program, per refinery

B. Navajo and Montana Refining. For failure to conduct any of the audits described in

Paragraph 23.C:

$5,000 per month, per audit

C. Navajo and Montana Refining. For failure to implement any actions necessary to

correct non-compliance as required in Paragraph 23.D:

Period of Delay Penalty per day

1st through 30th day after deadline $1250

31st through 60th day after deadline $3000

Beyond 60th day $5000, or an amount equal to 1.2 times the

economic benefit of delayed compliance,

whichever is greater

D. Navajo and Montana Refining. For failure to initiate an internal leak rate definition as

specified in Paragraph 23.E:
126

$10,000 per month per process unit

E. Navajo and Montana Refining. For failure to implement the first attempt repair

program in Paragraph 23.G or for failure to implement the QA/QC procedures described in

Paragraph 23.J:

$10,000 per month, per refinery

F. Navajo and Montana Refining. For failure to implement the more frequent monitoring

program required by Paragraph 23.H.ii:

$10,000 per month, per unit

G. Navajo and Montana Refining. For failure to designate an individual as accountable

for LDAR performance as required in Paragraph 23.K, or for failure to implement the

maintenance tracking program in Paragraph 23.L, or for failure to write a LDAR program that

meets the requirements of Paragraph 23.A:

$3,750 per week, per refinery

H. Navajo and Montana Refining. For failure to use dataloggers or maintain electronic

data as required by Paragraph 23.I.:

$5,000 per month, per refinery

I. Navajo and Montana Refining. For failure to conduct the calibration drift assessments

or remonitor valves and pumps based on calibration drift assessments in Paragraph 23.M:

$100 per missed event per refinery

J. Navajo and Montana Refining. For failure to comply with the requirements for repair

set forth at Paragraphs 23.N.ii and 23.N.iii:

$5,000 per valve or pump
127

K. Navajo and Montana Refining. For failure to submit the written deliverables required

by Paragraph 23.O:

$1,000 per week per report

L. Navajo and Montana Refining. If it is determined through a federal, state, or local

investigation that Navajo and/or Montana Refining, as applicable has failed to include all valves

and pumps in its LDAR program, Navajo and/or Montana Refining shall pay $175 per

component that it failed to include.

55. Paragraph 24 – Requirements to Incorporate Consent Decree Requirements

into Federally-Enforceable Permits.

Navajo and Montana Refining. For each failure to submit an application as required by

Paragraph 24:

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

Days 1-30 $800 $400

Days 31-60 $1600 $800

Over 60 Days $3000 $1500

56. Paragraphs 29 - 31 – Requirements Related to Environmentally Beneficial

Projects.

A. Navajo. For failure to submit a plan conforming to the requirements of Paragraph 29,

per day:

Period of Delay Penalty per day

1st through 30th day after deadline $200

31st through 60th day after deadline $500
128

Beyond 60th day $1000

B. Navajo. For failure to install the controls required pursuant to the approved schedule

of implementation required in Paragraph 29, per unit, per day:

Period of Delay Penalty per day

1st through 30th day after deadline $1000

31st through 60th day after deadline $1500

Beyond 60th day $2000, or an amount equal to 1.2 times the

economic benefit of the delayed compliance

whichever is greater

C. Navajo. For failure to complete the installation of the equipment, piping,

instrumentation, and controls necessary to operate the 40 LTD sulfur recovery plant on hot

stand-by pursuant to the requirements of Paragraph 30:

Period of Delay Penalty per day

1st through 30th day after deadline $1000

31st through 60th day after deadline $1500

Beyond 60th day $2000, or an amount equal to 1.2 times the

economic benefit of the delayed compliance

whichever is greater

D. Navajo. For failure to complete the optimization study required by Paragraph 30, per

day:
129

 Period of Delay Penalty per day

 1st through 30th day after deadline $500

 Beyond 31st day after deadline $1500

 Beyond 60th day after deadline $2000

E. Navajo. For failure to install an additional wet gas compressor as required by

Paragraph 31, per day:

Period of Delay Penalty per day

1st through 30th day after deadline $1000

31st through 60th day after deadline $1500

Beyond 60th day $2000, or an amount equal to 1.2 times the

economic benefit of the delayed compliance

whichever is greater

57. Paragraph 37 -- Requirements for Reporting and Recordkeeping.

Navajo and Montana Refining. For failure to submit reports as required by Section IX,

per day:

Period of Delay Penalty per day Penalty per day

for Navajo for Montana Refining

1st through 30th day after deadline $300 $100

31st through 60th day after deadline $1100 $400

Beyond 60th day $2000 $800

58. Paragraphs 38 and 39 -- Requirements for Payment of Civil Penalties. For

Navajo’s and Montana Refining’s failure to pay the civil penalties as specified in Paragraph 38 of

this Consent Decree and/or for Navajo’s failure to pay the civil penalties as specified in

Paragraph 39 of this Consent Decree, Navajo and/or Montana Refining, as applicable, shall be
130

liable for $10,000 per day plus interest on the amount overdue at the rate specified in 28 U.S.C

§ 1961(a).

59. Paragraph 61 – Requirement to Escrow Stipulated Penalties. For failure to

escrow stipulated penalties as required by Paragraph 61 of this Consent Decree, Navajo shall be

liable for $2,500 per day and Montana Refining shall be liable for $1000 per day, and both shall

be liable for interest on the amount overdue at the rate specified in 28 U.S.C. § 1961(a). 

60. Payment of Stipulated Penalties. Navajo or Montana Refining, as applicable, shall

pay stipulated penalties upon written demand by the United States, the NMED, or the

Montana DEQ, no later than sixty (60) days after Navajo or Montana Refining, as applicable,

receives such demand. Demand from one agency shall be deemed a demand from all applicable

agencies, but the agencies shall consult with each other prior to making a demand. Stipulated

penalties owed by Navajo Refining shall be paid 50% to the United States and 50% to the State

of New Mexico. Stipulated penalties owed by Montana Refining shall be paid 50% to the United

States and 50% to the State of Montana. Stipulated penalties shall be paid to the United States,

the State of New Mexico, and/or the State of Montana in the manner set forth in Section X (Civil

Penalty) of this Consent Decree. A demand for the payment of stipulated penalties will identify

the particular violation(s) to which the stipulated penalty relates, the stipulated penalty amount

the Applicable Federal or State Agency is demanding for each violation (as can be best

estimated), the calculation method underlying the demand, and the grounds upon which the

demand is based. After consultation with each other, the United States, the State of New

Mexico, and the State of Montana may, in their unreviewable discretion, waive payment of any

portion of stipulated penalties that may accrue under this Consent Decree. 
131

61. Stipulated Penalties Dispute. Should Navajo and/or Montana Refining, as

applicable, dispute its/their obligation to pay part or all of a stipulated penalty, it/they may avoid

the imposition of a stipulated penalty for failure to pay a stipulated penalty under Paragraph 59

by placing the disputed amount demanded in a commercial escrow account pending resolution of

the matter and by invoking the dispute resolution provisions of Section XV within the time

provided in Paragraph 60 for payment of stipulated penalties. If the dispute is thereafter resolved

in Navajo’s or Montana Refining’s favor, the escrowed amount plus accrued interest shall be

returned to them; otherwise, the Applicable Federal and State Agency(ies) shall be entitled to the

amount that was determined to be due by the Court, plus the interest that has accrued in the

escrow account on such amount. The United States, New Mexico, and Montana reserve the right

to pursue any other non-monetary remedies to which they are entitled, including but not limited

to, additional injunctive relief for Navajo’s or Montana Refining’s violations of this Consent

Decree.

XII. INTEREST

62. Navajo and Montana Refining shall be liable for interest on the unpaid balance of the

civil penalty specified in Section X, and for interest on any unpaid balance of stipulated penalties

to be paid in accordance with Section XI. All such interest shall accrue at the rate established

pursuant to 28 U.S.C. § 1961(a) -- i.e., a rate equal to the coupon issue yield equivalent (as

determined by the Secretary of Treasury) of the average accepted auction price for the last

auction of 52-week U.S. Treasury bills settled prior to the Date of Lodging of the Consent

Decree. Interest shall be computed daily and compounded annually. Interest shall be calculated

from the date payment is due under the Consent Decree through the date of actual payment. For

purposes of this Paragraph 62, interest pursuant to this Paragraph will cease to accrue on the
132

amount of any stipulated penalty payment made into an interest bearing escrow account as

contemplated by Paragraph 61 of the Consent Decree. Monies timely paid into escrow shall not

be considered to be an unpaid balance under this Section.

XIII. RIGHT OF ENTRY

63. Any authorized representative of EPA or the Applicable State Agency, including

independent contractors, upon presentation of credentials, shall have a right of entry upon the

premises of the facilities of the Covered Refineries, at any reasonable time for the purpose of

monitoring compliance with the provisions of this Consent Decree, including inspecting plant

equipment, and inspecting and copying (except as expressly provided in Paragraph 33) all

records maintained by Navajo and Montana Refining required by this Consent Decree. Navajo

and Montana Refining shall retain such records for the period of the Consent Decree. Nothing in

this Consent Decree shall limit the authority of EPA or the Applicable State Agency to conduct

tests, inspections, or other activities under any statutory or regulatory provision.

XIV. FORCE MAJEURE

64. If any event occurs which causes or may cause a delay or impediment to performance

in complying with any provision of this Consent Decree, Navajo and/or Montana Refining, as

applicable, shall notify the Applicable Federal and State Agencies in writing as soon as

practicable, but in any event within ten (10) business days of the date when Navajo and/or

Montana Refining, as applicable, first knew of the event or should have known of the event by

the exercise of due diligence. In this notice, Navajo and/or Montana Refining, as applicable,

shall specifically reference this Paragraph 64 of this Consent Decree and describe the anticipated

length of time the delay may persist, the cause or causes of the delay, and the measures taken or

to be taken by Navajo and/or Montana Refining, as applicable, to prevent or minimize the delay
133

and the schedule by which those measures shall be implemented. Navajo and/or Montana

Refining, as applicable, shall adopt all reasonable measures to avoid or minimize such delays. 

The notice required by this Section shall be effective upon the mailing of the same by certified

mail, return receipt requested, to the Applicable EPA Regional Office as specified in

Paragraph 91 (Notice).

65. Failure by Navajo and/or Montana Refining, as applicable, to substantially comply

with the notice requirements of Paragraph 64 as specified above shall render this Section XIV

(Force Majeure) voidable by the United States, in consultation with the Applicable State Agency,

as to the specific event for which Navajo and/or Montana Refining, as applicable, has failed to

comply with such notice requirement, and, if voided, is of no effect as to the particular event

involved.

66. The United States, after consultation with the Applicable State Agency, shall notify

Navajo and/or Montana Refining, as applicable, in writing regarding its/their claim of a delay or

impediment to performance within thirty (30) days of receipt of the force majeure notice

provided under Paragraph 64.

67. If the United States, after consultation with the Applicable State Agency, agrees that

the delay or impediment to performance has been or will be caused by circumstances beyond the

control of Navajo and/or Montana Refining, as applicable, including any entity controlled by

Navajo and/or Montana Refining, as applicable, and that Navajo and/or Montana Refining, as

applicable, could not have prevented the delay by the exercise of due diligence, the Parties shall

stipulate to an extension of the required deadline(s) for all requirement(s) affected by the delay

by a period equivalent to the delay actually caused by such circumstances. Such stipulation shall

be filed as a modification to the Consent Decree pursuant to the modification procedures
134

established in this Consent Decree. Navajo and/or Montana Refining, as applicable, shall not be

liable for stipulated penalties for the period of any such delay.

68. If the United States, after consultation with the Applicable State Agency, does not

accept Navajo’s and/or Montana Refining’s claim of a delay or impediment to performance,

Navajo and/or Montana Refining, as applicable, must submit the matter to the Court for

resolution to avoid payment of stipulated penalties, by filing a petition for determination with the

Court. Once Navajo and/or Montana Refining, as applicable, has submitted this matter to the

Court, the United States and the Applicable State Agency shall have twenty (20) business days to

file their responses to the petition. If the Court determines that the delay or impediment to

performance has been or will be caused by circumstances beyond the control of Navajo and/or

Montana Refining, as applicable, including any entity controlled by Navajo and/or Montana

Refining, as applicable, and that the delay could not have been prevented by Navajo and/or

Montana Refining, as applicable, by the exercise of due diligence, Navajo and/or Montana

Refining, as applicable, shall be excused as to that event(s) and delay (including stipulated

penalties), for a period of time equivalent to the delay caused by such circumstances.

69. Navajo and/or Montana Refining, as applicable, shall bear the burden of proving that

any delay of any requirement(s) of this Consent Decree was caused by or will be caused by

circumstances beyond its/their control, including any entity controlled by it/them, and that it/they

could not have prevented the delay by the exercise of due diligence. Navajo and/or Montana

Refining, as applicable, shall also bear the burden of proving the duration and extent of any

delay(s) attributable to such circumstances. An extension of one compliance date based on a

particular event may, but will not necessarily, result in an extension of a subsequent compliance

date or dates.
135

70. Unanticipated or increased costs or expenses associated with the performance of

Navajo’s and/or Montana Refining’s obligations under this Consent Decree shall not constitute

circumstances beyond its/their control, or serve as the basis for an extension of time under this

Section XIV.

71. Notwithstanding any other provision of this Consent Decree, this Court shall not

draw any inferences nor establish any presumptions adverse to either Party as a result of Navajo

and/or Montana Refining, as applicable, serving a force majeure notice or the Parties' inability to

reach agreement.

72. As part of the resolution of any matter submitted to this Court under this

Section XIV, the Parties by agreement, or the Court, by order, may in appropriate circumstances

extend or modify the schedule for completion of work under the Consent Decree to account for

the delay in the work that occurred as a result of any delay or impediment to performance agreed

to by the United States or approved by this Court. Navajo and/or Montana Refining, as

applicable, shall be liable for stipulated penalties for their failure thereafter to complete the work

in accordance with the extended or modified schedule.

XV. RETENTION OF JURISDICTION/DISPUTE RESOLUTION

73. This Court shall retain jurisdiction of this matter for the purposes of implementing

and enforcing the terms and conditions of the Consent Decree and for the purpose of adjudicating

all disputes (including, but not limited to, determinations under Section V (Affirmative

Relief/Environmental Projects) of the Consent Decree) among the Parties that may arise under

the provisions of the Consent Decree, until the Consent Decree terminates in accordance with

Paragraph 95 of this Consent Decree (Termination).
136

74. Except as expressly provided in Paragraph 33, the dispute resolution procedure set

forth in this Section XV shall be available to resolve all disputes arising under this Consent

Decree, including assertion of commercial unavailability under Paragraph 28 of this Consent

Decree, provided that the Party making such application has made a good faith attempt to resolve

the matter with the other Party.

75. The dispute resolution procedure required herein shall be invoked upon the giving of

written notice by one of the Parties to this Consent Decree to another advising of a dispute

pursuant to this Section XV. The notice shall describe the nature of the dispute, and shall state

the noticing Party's position with regard to such dispute. The Party receiving such a notice shall

acknowledge receipt of the notice and the Parties shall expeditiously schedule a meeting to

discuss the dispute informally not later than fourteen (14) days from the receipt of such notice.

76. Disputes submitted to dispute resolution shall, in the first instance, be the subject of

informal negotiations between the Parties. Such period of informal negotiations shall not extend

beyond thirty (30) calendar days from the date of the first meeting between representatives of the

Parties, unless it is agreed that this period should be extended.

77. In the event that the Parties are unable to reach agreement during such informal

negotiation period, the United States or the Applicable State Agency, as applicable, shall provide

Navajo and/or Montana Refining, as applicable, with a written summary of its position regarding

the dispute. The position advanced by the United States or the Applicable State Agency, as

applicable, shall be considered binding unless, within forty-five (45) calendar days of Navajo’s

and/or Montana Refining’s receipt of the written summary of the United States’ or the

Applicable State Agency’s position, Navajo and/or Montana Refining, as applicable, files with

the Court a petition which describes the nature of the dispute. The United States or the
137

Applicable State Agency shall respond to the petition within forty-five (45) calendar days of

filing.

78. In the event that the United States and the Applicable State Agency make differing

determinations or take differing actions that affect Navajo’s and/or Montana Refining’s rights or

obligations under this Consent Decree, the final decisions of the United States shall take

precedence.

79. Where the nature of the dispute is such that a more timely resolution of the issue is

required, the time periods set forth in this Section XV may be shortened upon motion of one of

the Parties to the dispute. 

80. The Parties do not intend that the invocation of this Section XV by a Party cause the

Court to draw any inferences nor establish any presumptions adverse to either Party as a result of

invocation of this Section.

81. As part of the resolution of any dispute submitted to dispute resolution, the Parties,

by agreement, or this Court, by order, may, in appropriate circumstances, extend or modify the

schedule for completion of work under this Consent Decree to account for the delay in the work

that occurred as a result of dispute resolution. Navajo and/or Montana Refining, as applicable,

shall be liable for stipulated penalties for their failure thereafter to complete the work in

accordance with the extended or modified schedule.

XVI. EFFECT OF SETTLEMENT

82. The effect of settlement of this action is governed by this Paragraph 82.

A. Definitions. For purposes of Paragraph 82, the following definitions apply:

i. “Applicable NSR/PSD Requirements” shall mean:
138

(a) PSD requirements at Part C of Subchapter I of the Act, 42 U.S.C. § 7475, and the

regulations promulgated thereunder at 40 C.F.R. § 52.21;

(b) “Plan Requirements for Non-Attainment Areas” at Part D of Subchapter I of the

Act, 42 U.S.C. §§ 7502-7503, and the regulations promulgated thereunder at 40

C.F.R. §§ 51.165 (a) and (b); Title 40, Part 51, Appendix S; and 40 C.F.R. §

52.24; and 

(c) Any applicable state regulations that implement, adopt, or incorporate the specific

federal regulatory requirements identified above.

ii. “Applicable NSPS Subparts A and J Requirements” shall mean the standards,

monitoring, testing, reporting and recordkeeping requirements, found at 40 C.F.R. §§ 60.100

through 60.109 (Subpart J), relating to a particular pollutant and a particular affected facility, and

the corollary general requirements found 40 C.F.R. §§ 60.1 through 60.19 (Subpart A) that are

applicable to any affected facility covered by Subpart J.

iii. “Post-Lodging Compliance Dates” shall mean any dates in this Paragraph 82 after the

Date of Lodging. Post-Lodging Compliance Dates include dates certain (e.g., “December 31,

2003"), dates after Lodging represented in terms of “months after Lodging” (e.g., “Twelve

Months after the Date of Lodging”), and dates after Lodging represented by actions taken (e.g.,

“Date of Certification”). The Post-Lodging Compliance Dates represent the dates by which work

is required to be completed or an emission limit is required to be met under the applicable

provisions of this Consent Decree.

B. New Source Review/Prevention of Significant Deterioration.

i. Liability Resolution regarding the Applicable NSR/PSD Requirements.

a. Specific Pollutant and Units. With respect to emissions of the following pollutants

from the following units, entry of this Consent Decree shall resolve all civil liability of Navajo,

Montana Refining, and Holly to the United States and the Plaintiff-Intervenors: (i) for violations
139

of the Applicable NSR/PSD Requirements resulting from construction or modification, that

occurred prior to the Date of Lodging of the Consent Decree, of the following units; and (ii) for

any pre-Lodging construction or modification of the following units that resulted in violations of

the Applicable NSR/PSD Requirements that continued up to the following dates:

Unit Pollutant Date

Artesia FCCU SO2 December 31, 2003

NOx March 31, 2005

PM and PM10 December 31, 2003

CO December 31, 2003

Great Falls FCCU SO2 and NOx December 31, 2004

CO Twelve Months after

 the Date of Lodging

Heaters and boilers of Navajo’s listed in NOx Dates in Appendix C

in Appendix C

All heaters and boilers of Navajo’s other NOx Date of Lodging

than those listed in Appendix C

All heaters and boilers of Navajo SO2 Date of Lodging

All heaters and boilers of Montana Refining NOx Date of Lodging

All heaters and boilers of Montana Refining SO2 December 31, 2006

b. NSR/PSD PM and PM10Violations at the Great Falls FCCU. With respect to

emissions of PM and PM10 from the Great Falls FCCU, if and when Montana Refining certifies

the commencement of the operation of a TSS or control technology equivalent in PM control

effectiveness pursuant to requirements of Paragraph 13.C, the civil liability of Montana Refining

and Holly to the United States and the State of Montana shall be resolved for violations of the

Applicable NSR/PSD Requirements resulting from construction or modification, that occurred

prior to the Date of Lodging of the Consent Decree, of the Great Falls FCCU, and for violations
140

of the Applicable NSR/PSD Requirements that resulted from any such pre-Lodging construction

or modification and that continued up to the date of certification of the commencement of the

operation a TSS or control technology equivalent in PM control effectiveness pursuant to

requirements of Paragraph 13.C.

ii. Reservation of Rights: Release for Violations Continuing After the Date of

Lodging Can be Rendered Void. Notwithstanding the resolution of liability in Paragraph

82.B.i, the release of liability by the United States and the Plaintiff-Intervenors to Navajo,

Montana Refining, and Holly for violations of the Applicable NSR/PSD Requirements during the

period between the Date of Lodging of the Consent Decree and the Post-Lodging Compliance

Dates shall be rendered void if Navajo and/or Montana Refining, as applicable, materially fails to

comply with the obligations and requirements of Paragraphs 11 - 14; provided however, that the

release in Paragraph 82.B.i shall not be rendered void if Navajo and/or Montana Refining, as

applicable, remedies such material failure and pays any stipulated penalties due as a result of

such material failure.
141

iii. Exclusions from Release Coverage: Construction and/or Modification Not

Covered by Paragraph 82.B.i. Notwithstanding the resolution of liability in Paragraph 82.B.i,

nothing in this Consent Decree precludes the United States and/or the Plaintiff-Intervenors from

seeking from Navajo and/or Montana Refining, as applicable, injunctive relief, penalties, or other

appropriate relief for violations by Navajo and/or Montana Refining, as applicable, of the

Applicable NSR/PSD Requirements resulting from construction or modification that:

(1) commenced prior to or commences after the Date of Lodging of the Consent Decree for

pollutants or units not covered by the Consent Decree; or (2) commences after the Date of

Lodging of the Consent Decree for units covered by this Consent Decree, except for construction

and/or modification required by this Consent Decree.

iv. Evaluation of Applicable PSD/NSR Requirements Must Occur. Increases in

emissions from units covered by this Consent Decree, where the increases result from the

Post-Lodging construction or modification of any units within the Covered Refineries, are

beyond the scope of the release in Paragraph 82.B.i, and Navajo and/or Montana Refining must

evaluate any such increases in accordance with the Applicable PSD/NSR Requirements.

C. New Source Performance Standards Subparts A and J.

i. Resolution of Liability.

a. Specific Pollutants and Units. With respect to emissions of the following pollutants

from the following units, for violations of the Applicable NSPS Subparts A and J Requirements,

entry of this Consent Decree shall resolve all civil liability of Navajo, Montana Refining, and

Holly to the United States and the Plaintiff-Intervenors from the date that the claims of the

United States and the Plaintiff-Intervenors accrued through the following dates:

Unit Pollutant Date
142

Artesia FCCU SO2, PM, PM10 and CO December 31, 2003

Great Falls FCCU SO2 December 31, 2004

CO 12 months after the 

 Date of Lodging

All heaters and boilers of Navajo SO2 Date of Lodging

All heaters and boilers of SO2 December 31, 2006

Montana Refining

Artesia SRP SO2 Date of Lodging

Artesia Flaring Devices SO2 Date of Lodging

GOHT Flaring Device SO2 Date of Installation

Lovington Flaring Device (FL-1001)SO2 December 31, 2006

Great Falls Flaring Device SO2 Date of Lodging

b. NSPS PM and PM10 violations at the Great Falls FCCU. If and when Montana

Refining: (1) commences the operation of a TSS or control technology equivalent in PM control

effectiveness; (2) notifies EPA and the Montana DEQ that Montana Refining accepts NSPS

applicability for PM from the Great Falls FCCU; and (3) demonstrates compliance with an

emission limit of 1.0 pound PM per 1000 pounds of coke burned on a 3-hour average basis by

conducting a 3-hour performance test representative of normal operating conditions for PM

emissions, then the civil liability of Montana Refining and Holly to the United States and the

State of Montana shall be resolved for violations of the NSPS Subparts A and J provisions that

relate to PM emissions from an FCCU from the date that the NSPS claims of the United States

and/or the State Montana first accrued through the date of the first demonstration of compliance

with an emission limit of 1.0 pound PM per 1000 pounds of coke burned on a 3-hour average
143

basis by conducting a 3-hour performance test representative of normal operating conditions for

PM emissions.

ii. Reservation of Rights: Release for NSPS Violations Occurring After the Date of

Lodging Can be Rendered Void. Notwithstanding the resolution of liability in Paragraph

82.C.i.a, the release of liability by the United States and the Plaintiff-Intervenors to Navajo,

Montana Refining, and Holly for violations of any Applicable NSPS Subparts A and J

Requirement that occurred between the Date of Lodging and the Post-Lodging Compliance Dates

shall be rendered void if Navajo and/or Montana Refining, as applicable, materially fails to

comply with the obligations and requirements of Paragraphs 15 - 19; provided however, that the

release in Paragraph 82.C.i.a shall not be rendered void if Navajo and/or Montana Refining, as

applicable, remedies such material failure and pays any stipulated penalties due as a result of

such material failure.

iii. Prior NSPS Applicability Determinations. Nothing in this Consent Decree shall

affect the status of any FCCU, fuel gas combustion device, or sulfur recovery plant currently

subject to NSPS as previously determined by any federal, state, or local authority or any

applicable permit.

D. LDAR and Benzene Waste NESHAP.

i. Resolution of Liability. Entry of this Consent Decree shall resolve all civil liability of

Navajo, Montana Refining, and Holly to the United States and the Plaintiff-Intervenors for

violations of the following statutory and regulatory requirements that occurred prior to the Date

of Entry of the Consent Decree:

a. LDAR. For all equipment in light liquid service and gas and/or vapor service, the

LDAR requirements promulgated pursuant to Sections 111 and 112 of the Clean Air Act, and
144

codified at 40 C.F.R. Part 60, Subparts VV and GGG; 40 C.F.R. Part 61, Subparts J and V; and

40 C.F.R. Part 63, Subparts F, H, and CC; 

b. Benzene Waste NESHAP. The National Emission Standard for Benzene Waste

Operations, 40 C.F.R. Part 61, Subpart FF, promulgated pursuant to Section 112(e) of the Act, 42

U.S.C. § 7412(e); and

c. Any applicable state regulations that implement, adopt, or incorporate the specific

federal regulatory requirements identified in Paragraphs 82.D.i-ii.

ii. Artesia FCCU Wet Gas Compressor. Notwithstanding the provisions of

Paragraph 82.D.i.a, the civil liability of Navajo and Holly to the United States and the State of

New Mexico for violations of 40 C.F.R. § 60.482-3 at the Artesia FCCU Wet Gas Compressor

shall be resolved through December 31, 2003; provided however, that the release of liability for

the period between the Date of Lodging and December 31, 2003, shall be rendered void if Navajo

does not meet the NSPS requirements at 40 C.F.R. § 60.482-3 for the Artesia FCCU Wet Gas

Compressor on or before December 31, 2003.

iii. Reservation of Rights. Except as specifically provided in Paragraph 82.D.ii, and

notwithstanding the resolution of liability in Paragraphs 82.D.i, nothing in this Consent Decree

precludes the United States and/or Plaintiff-Intervenors from seeking from Navajo or Montana

Refining or Holly:

(a) injunctive and/or other equitable relief for violations of Benzene Waste NESHAP

and/or LDAR that (A) commenced prior to the Date of Entry of this Consent

Decree and continued after the Date of Entry; or (B) commenced after the Date of

Entry of the Consent Decree; or

(b) civil penalties for violations of the Benzene Waste NESHAP and/or LDAR

occurring on or after the Date of Entry of the Consent Decree.
145

E. NSPS Subpart QQQ. Entry of this Consent Decree shall resolve all civil liability of

Navajo to the United States and the State of New Mexico for violations of 40 C.F.R.

§§ 60.690-60.699 (Subpart QQQ), from the date that the claims of the United States and New

Mexico accrued through December 31, 2003; provided however, that the release of liability for

the period between the Date of Lodging and December 31, 2003, shall be rendered void if Navajo

does not meet the NSPS requirements at 40 C.F.R. §§ 60.692-60.693, on or before December 31,

2003.

F. Other.

i. May 10, 2001 and July 27, 2001 NMED Compliance Orders. Entry of this Consent

Decree shall resolve all civil liability of Navajo and Holly to the State of New Mexico and to the

United States for the violations in the May 10, 2001 NMED Compliance Order and the July 27,

2001 NMED Compliance Order. This civil liability shall be resolved with respect to SO2, PM,

and CO, through December 31, 2003, and with respect to NOx, through the date that the NOx

emission limitation is established by EPA pursuant to Paragraph 11.E; provided however, that

the release of liability for the period between the Date of Lodging and the Post-Lodging

Compliance Dates shall be rendered void if Navajo materially fails to comply with the

obligations and requirements of Paragraphs 11 - 14; provided however, that this release shall not

be rendered void if Navajo remedies such material failure and pays any stipulated penalties due

as a result of such material failure.

ii. Lovington Flaring Device. Entry of this Consent Decree shall resolve all civil

liability of Navajo and Holly to the State of New Mexico for violations arising from Navajo’s use

of the Lovington Flaring Device (FL-1001) occurring during scheduled shutdown at Duke
146

Energy’s Linam Ranch Natural Gas Plant from the date that New Mexico’s claims accrued

through December 31, 2006; provided however, that the release of liability for the period

between the Date of Lodging and December 31, 2006, shall be rendered void: (i) with respect to

a particular Flaring Incident at the Lovington Flaring Device occurring during a scheduled

shutdown at Duke Energy’s Linam Ranch Natural Gas Plant for which Navajo did not comply

with the notice requirement of Paragraph 19.E; or (ii) if Navajo does not meet the emission limit

for fuel gas combustion devices at 40 C.F.R. § 60.104(a)(1), on or before December 31, 2006. 

Notwithstanding the preceding sentence, New Mexico reserves the right to seek injunctive relief

for Navajo’s operation of its Lovington Flaring Device that results or may result in an

exceedance of an ambient air quality standard.

G. Audit Policy. Nothing in this Consent Decree is intended to limit or disqualify

Navajo or Montana Refining or Holly, on the grounds that information was not discovered and

supplied voluntarily, from seeking to apply EPA’s Audit Policy or any state audit policy to any

violations or non-compliance that Navajo or Montana Refining or Holly discovers during the

course of any investigation, audit, or enhanced monitoring that Navajo or Montana Refining is

required to undertake pursuant to this Consent Decree. 

H. Claim/Issue Preclusion. In any subsequent administrative or judicial proceeding

initiated by the United States or the Plaintiff-Intervenors for injunctive relief, penalties, or other

appropriate relief relating to Navajo or Montana Refining or Holly for violations of the

PSD/NSR, NSPS, NESHAP, and/or LDAR requirements, not identified in Paragraph 82 of the

Consent Decree and/or the Complaint and/or the May 10, 2001 NMED Compliance Order and/or

the July 27, 2001 NMED Compliance Order:
147

a. Navajo, Montana Refining, and/or Holly shall not assert, and may not maintain, any

defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue

preclusion, or claim-splitting. Nor may Navajo, Montana Refining, and/or Holly assert, or

maintain, any other defenses based upon any contention that the claims raised by the United

States or the Plaintiff-Intervenors in the subsequent proceeding were or should have been brought

in the instant case. Nothing in the preceding sentences is intended to affect the ability of Navajo,

Montana Refining and/or Holly to assert that the claims are deemed resolved by virtue of this

Paragraph 82 of the Consent Decree. 

b. The United States and Plaintiff-Intervenors may not assert or maintain that this

Consent Decree constitutes a waiver or determination of, or otherwise obviates, any claim or

defense whatsoever, or that this Consent Decree constitutes acceptance by Navajo, Montana

Refining, and/or Holly of any interpretation or guidance issued by EPA related to the matters

addressed in this Consent Decree.

I. Imminent and Substantial Endangerment. Nothing in this Consent Decree shall be

construed to limit the authority of the United States, New Mexico, and Montana to undertake any

action against any person, including Navajo, Montana Refining and/or Holly, to abate or correct

conditions which may present an imminent and substantial endangerment to the public health,

welfare, or the environment.
148

XVII. GENERAL PROVISIONS

83. Other Laws. Except as specifically provided by this Consent Decree, nothing in this

Consent Decree shall relieve Navajo and Montana Refining of their obligations to comply with

all applicable federal, state and local laws and regulations. Subject to Paragraph 82, nothing

contained in this Consent Decree shall be construed to prevent or limit the rights of the United

States, New Mexico, or Montana to seek or obtain other remedies or sanctions available under

other federal, state or local statutes or regulations, by virtue of Navajo’s or Montana Refining’s

violation of the Consent Decree or of the statutes and regulations upon which the Consent Decree

is based, or for Navajo’s or Montana Refining’s violations of any applicable provision of law,

other than the specific matters resolved herein. This shall include the right of the United States,

New Mexico, or Montana to invoke the authority of the Court to order Navajo’s or Montana

Refining’s compliance with this Consent Decree in a subsequent contempt action.

84. Post-Permit Violations. Nothing in this Consent Decree shall be construed to

prevent or limit the right of the United States, New Mexico, or Montana, to seek injunctive or

monetary relief for violations of permits issued as a result of the procedure required under

Paragraph 24 of this Decree; provided however, that with respect to monetary relief, the United

States, New Mexico, and Montana must elect between filing a new action for such monetary

relief or seeking stipulated penalties under this Consent Decree, if stipulated penalties also are

available for the alleged violation(s).

85. Failure of Compliance. The United States, New Mexico, and Montana do not, by

their consent to the entry of Consent Decree, warrant or aver in any manner that Navajo’s and

Montana Refining’s complete compliance with the Consent Decree will result in compliance
149

with the provisions of the CAA, the New Mexico Air Quality Control Act, or the Montana Clean

Air Act. Notwithstanding the review or approval by EPA, the NMED and/or the Montana DEQ

of any plans, reports, policies or procedures formulated pursuant to the Consent Decree, Navajo

and Montana Refining shall remain solely responsible for compliance with the terms of the

Consent Decree, all applicable permits, and all applicable federal, state and local laws and

regulations, except as provided in Section XIV (Force Majeure). 

86. Service of Process. Navajo and Montana Refining hereby agree to accept service of

process by mail with respect to all matters arising under or relating to the Consent Decree and to

waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure

and any applicable local rules of this Court, including but not limited to, service of a summons. 

The persons identified by Navajo and Montana Refining at Paragraph 91 (Notice) are authorized

to accept service of process with respect to all matters arising under or relating to the Consent

Decree. 

87. Post-Lodging/Pre-Entry Obligations. Obligations of Navajo and Montana

Refining under this Consent Decree to perform duties scheduled to occur after the Date of

Lodging of the Consent Decree, but prior to the Date of Entry of the Consent Decree, shall be

legally enforceable on and after the Date of Entry of the Consent Decree. Liability for stipulated

penalties, if applicable, shall accrue for violation of such obligations and payment of such

stipulated penalties may be demanded by the United States, New Mexico and/or Montana as

provided in this Consent Decree, provided that stipulated penalties that may have accrued

between the Date of Lodging of the Consent Decree and the Date of Entry of the Consent Decree

may not be collected unless and until this Consent Decree is entered by the Court. 
150

88. Costs. Each Party to this action shall bear its own costs and attorneys' fees.

89. Public Documents. All information and documents submitted by Navajo and

Montana Refining to the Applicable Federal and State Agencies pursuant to this Consent Decree

shall be subject to public inspection in accordance with the respective statutes and regulations

that are applicable to EPA, the NMED, and the Montana DEQ, unless subject to legal privileges

or protection or identified and supported as business confidential in accordance with the

respective state or federal statutes or regulations.

90. Public Notice and Comment. The Parties agree to the Consent Decree and agree

that the Consent Decree may be entered upon compliance with the public notice procedures set

forth at 28 C.F.R. § 50.7, and upon notice to this Court from the United States Department of

Justice requesting entry of the Consent Decree. The United States reserves the right to withdraw

or withhold its consent to the Consent Decree if public comments disclose facts or considerations

indicating that the Consent Decree is inappropriate, improper, or inadequate.

91. Notice. Unless otherwise provided herein, notifications to or communications

between the Parties shall be deemed submitted on the date they are postmarked and sent by U.S.

Mail, postage pre-paid, except for notices under Section XIV (Force Majeure) and Section XV

(Retention Jurisdiction/Dispute Resolution) which shall be sent by overnight mail or by certified

or registered mail, return receipt requested. Each report, study, notification or other

communication of Navajo and Montana Refining shall be submitted as specified in this Consent

Decree, with copies to EPA Headquarters and the Applicable EPA Region and the Applicable

State Agency. Except as otherwise provided herein, all reports, notifications, certifications, or

other communications required or allowed under this Consent Decree to be submitted or
151

delivered to the United States, EPA, the States, Navajo and Montana Refining shall be addressed

as follows:

As to the United States:

Chief 

Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, DC 20044-7611

Reference Case No. 90-5-2-1-2228/1

As to EPA:

U.S. Environmental Protection Agency

Director, Air Enforcement Division

Ariel Rios Building

1200 Pennsylvania Avenue, N.W. 

Mail Code 2242-A

Washington, DC 20460

EPA Region 6:

Chief

Air, Toxics, and Inspections Coordination Branch

Environmental Protection Agency, Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

EPA Region 8:

Air Program Coordinator

U.S. EPA Region 8, Montana Office

301 S. Park, Drawer 10096

Helena, MT 59262-0096
152

The State of New Mexico:

General Counsel

Office of General Counsel

New Mexico Environment Department

P.O. Box 26110

1190 St. Francis Dr.

Santa Fe, NM 87502-6110

Bureau Chief

Air Quality Bureau

New Mexico Environment Department

2048 Galisteo St.

Santa Fe, NM 87505

The State of Montana:

Enforcement Division Administrator

Montana Department of Environmental Quality

P.O. Box 200901

Helena, MT 59620-0901

Bureau Chief

Air and Waste Management Bureau

Metcalf Building

P.O. Box 200901

Helena, MT 50620-0901

As to Navajo:

Plant Manager

Navajo Refining Co.

P.O. Box 159

501 E. Main St.

Artesia, NM 88211

General Counsel

Holly Corp.

100 Crescent Court

Suite 1600

Dallas, TX 75201-6927
153

As to Montana Refining:

Refinery Manager

Montana Refining Co.

1900 10th St., N.E.

Great Falls, MT 59404

General Counsel

Holly Corp.

100 Crescent Court

Suite 1600

Dallas, TX 75201-6927

Any party may change either the notice recipient or the address for providing notices to it by

serving all other parties with a notice setting forth such new notice recipient or address. In

addition, the nature and frequency of reports required by the Consent Decree may be modified by

mutual consent of the Parties. The consent of the United States to such modification must be in

the form of a written notification from the Department of Justice, but need not be filed with the

Court to be effective.

92. Approvals. All EPA approvals or comments required under this Decree shall

come from EPA, Office of Regulatory Enforcement, Air Enforcement Division, at the address

listed in Paragraph 91 (Notice). All Plaintiff-Intervener approvals shall be sent from the offices

identified in Paragraph 91.

93. Paperwork Reduction Act. The information required to be maintained or submitted

pursuant to this Consent Decree is not subject to the Paperwork Reduction Act of 1980, 44

U.S.C. §§ 3501 et seq.

94. Modification. The Consent Decree contains the entire agreement of the Parties and

shall not be modified by any prior oral or written agreement, representation or understanding. 

Prior drafts of the Consent Decree shall not be used in any action involving the interpretation or
154

enforcement of the Consent Decree. Non-material modifications to this Consent Decree shall be

in writing, signed by the Parties, but need not be filed with the Court. Material modifications to

this Consent Decree shall be in writing, signed by the Parties, and shall be effective upon filing

with the Court. Specific provisions in this Consent Decree that govern specific types of

modifications shall be effective as set forth in the specific provision governing the modification.

XVIII. TERMINATION

95. A. Provisions of this Consent Decree relating to Navajo shall be subject to

termination upon motion by the United States or Navajo (under the conditions identified in

Paragraph 95.B). Provisions of this Consent Decree relating to Montana Refining shall be

subject to termination upon motion by the United States or Montana Refining (under the

conditions identified in Paragraph 95.B). In either case, Navajo or Montana Refining, as

applicable, must have satisfied all of the following requirements of this Consent Decree:

i. installation of control technology systems as specified in this Consent Decree; 

ii. achieving compliance with all provisions contained in this Consent Decree;

iii. paying all penalties and other monetary obligations due under the terms of the

Consent Decree; no penalties or other monetary obligations due hereunder can be

outstanding or owed to the United States, New Mexico, or Montana;

iv. for Navajo, the completion of the projects set forth in Paragraphs 29 - 33;

v. the receipt of permits incorporating the emission limits established under

Section V; 

vi. EPA's receipt of the first calendar quarterly progress report following the

conclusion of the operation by Navajo or Montana Refining, as applicable, for at
155

least one year of all units in compliance with the emission limits established

herein; and

vii. Navajo or Montana Refining, as applicable, has certified compliance pursuant to

Paragraph 95.A.i-vi, above, to the United States and the Applicable State Agency

in writing.

B. Unless, within 120 days of receipt of the certification required by Paragraph 95.A.vii.,

either the United States or the Applicable State Agency objects in writing with specific reasons,

the Court may upon motion by Navajo or Montana Refining, as applicable, order that this

Consent Decree as to the petitioning Defendant be terminated. If either the United States or the

Applicable State Agency objects to the certification by Navajo or Montana Refining, as

applicable, then the matter shall be submitted to the Court for resolution under Section XV

(Retention of Jurisdiction/Dispute Resolution) of this Consent Decree. In such case, Navajo or

Montana Refining, as applicable, shall bear the burden of proving that this Consent Decree

should be terminated. 
156

XIX. SIGNATORIES

96. Each of the undersigned representatives certify that they are fully authorized to enter

into the Consent Decree on behalf of such Parties, and to execute and to bind such Parties to the

Consent Decree.

 Dated and entered this _______ day of __________, 2002. 

_______________________________

UNITED STATES DISTRICT JUDGE
WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v.

Navajo Refining Co. and Montana Refining Co., subject to the public notice and comment

requirements of 28 C.F.R. § 50.7.

FOR PLAINTIFF THE UNITED STATES OF AMERICA:

Date: 

 JOHN C. CRUDEN

Acting Assistant Attorney General

Environment and Natural Resources Division

United States Department of Justice

Date: 

ANNETTE M. LANG

Trial Attorney

Environmental Enforcement Section

Environment and Natural Resources

Division

United States Department of Justice

P.O. Box 7611

Ben Franklin Station

Washington, D.C. 20044-7611

DAVID C. IGLESIAS

United States Attorney for the 

District of New Mexico

Date: By: 

RAYMOND HAMILTON

Assistant United States Attorney

United States Attorneys Office for the District of

New Mexico

P.O. Box 607

Albuquerque, NM 87103
WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v.

Navajo Refining Co. and Montana Refining Co., subject to the public notice and comment

requirements of 28 C.F.R. § 50.7.

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:

Date: __________________ _______________________________

SYLVIA LOWRANCE

Acting Assistant Administrator for

 Enforcement and Compliance Assurance

United States Environmental 

Protection Agency

Washington, D.C. 20460
WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v.

Navajo Refining Co. and Montana Refining Co., subject to the public notice and comment

requirements of 28 C.F.R. § 50.7.

FOR PLAINTIFF-INTERVENOR THE STATE OF NEW MEXICO

Date: 

PETER MAGGIORE

Secretary

New Mexico Environment Department

P.O. Box 26110

1190 St. Francis Dr.

Santa Fe, NM 87502-6110
WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v.

Navajo Refining Co. and Montana Refining Co., subject to the public notice and comment

requirements of 28 C.F.R. § 50.7.

FOR PLAINTIFF-INTERVENOR STATE OF MONTANA

Date: 

JAN P. SENSIBAUGH

Director

Montana Department of Environmental Quality

P.O. Box 200901

Helena, MT 59620-0901
WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v.

Navajo Refining Co. and Montana Refining Co.

FOR DEFENDANT NAVAJO REFINING COMPANY, L.P.

Date: 

MATTHEW P. CLIFTON

President

Navajo Refining Company, L.P.

P.O. Box 159

501 E. Main St.

Artesia, NM 88211
WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v.

Navajo Refining Co. and Montana Refining Co.

FOR DEFENDANT MONTANA REFINING COMPANY

Date: 

LELAND GRIFFIN

Refinery Manager

Montana Refining Company

1900 10th St., N.E.

Great Falls, MT 59404
WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v.

Navajo Refining Co. and Montana Refining Co.

FOR HOLLY CORPORATION

Date: 

MATTHEW P. CLIFTON

President

Holly Corporation

100 Crescent Court

Suite 1600

Dallas, TX 75201-6927
APPENDIX A

MAY 10, 2001 NMED COMPLIANCE ORDER;

JULY 27, 2001 NMED COMPLIANCE ORDER
APPENDIX B

LIST OF FLARING DEVICES
APPENDIX B

LIST OF FLARING DEVICES AT THE ARTESIA, LOVINGTON AND

GREAT FALLS REFINERIES

A. ACID GAS FLARING DEVICES

Navajo Refinery- Artesia, NM

North Plant Flare (FL-400)

FCC Unit Flare (FL-402)

Alky/CCR Flare (FL-403)

B. HYDROCARBON FLARING DEVICES

Navajo Refinery- Artesia, NM

South Plant Flare (FL-401)

North Plant Flare (FL-400)

FCC Unit Flare (FL-402)

Alky/CCR Flare (FL-403)

GOHT Flare (FL-404) (not installed as of Date of Lodging)

Navajo Refinery - Lovington NM

LPG Flare (FL-1001)

Montana Refining Refinery - Great Falls, MT

 Emergency Flare (D-720)
APPENDIX C

LIST OF CONTROLLED HEATERS AND BOILERS
APPENDIX C

CONTROLLED HEATERS AND BOILERS AND 

RETROFIT SCHEDULE

FOR CONTROLLED HEATERS AND BOILERS

Heat Input Deadline for Deadline for Deadline for Deadline for

Equipment Design Capa. Retrofit Retrofit Retrofit Retrofit 

Identification (MMBtu/hr) Dec-02 Dec-03 Dec-05 Dec-09

 ARTESIA:

 B-7 232.0 X

 B-8 258.0 X

 H-20 93.8 X

 H-601 55.0 X (Per permit

 application

 dated May 2001*)

 H-600 88.0 X

 70-H1/H2/H3 188.0 X

 LOVINGTON:

 H-101 112.3 X

 B-SG-1101A 48.7 X

 B-SG-1101B 48.7 X

Retrofitted Capacity 232.0 258.0 206.1** 373.4

% of Heaters/Boilers

 >40 MMBtu/hr**: 21.7% 24.1% 19.3% 34.9%

 

* Will be installed with Next generation Ultra-Low NOx when built

 (As per permit application)

** Excluding H-601
APPENDIX D

DETERMINING THE OPTIMIZED ADDITION

RATES OF LOW NOx COMBUSTION

PROMOTORS AND NOx REDUCING

CATALYST ADDITIVES

AT THE ARTESIA FCCU
APPENDIX D

 DETERMINING THE OPTIMIZED ADDITION RATES OF 

LOW NOx COMBUSTION PROMOTORS

AND NOx REDUCING CATALYST ADDITIVES 

AT THE ARTESIA FCCU

I. PURPOSE

This Appendix defines a process by which Navajo shall determine for the Artesia FCCU

the Optimized Addition Rates for Low NOx Combustion Promotors and NOx Reducing Catalyst

Additives during the Optimization Period.

II. ESTABLISHING AN OPTIMIZED LOW NOx COMBUSTION PROMOTOR

ADDITION RATE 

A. Overview. Establishing an Optimized Low NOx Combustion Promotor Addition

Rate for the Artesia FCCU is a three-step process: (1) establishing a minimum addition rate for

the conventional combustion promotor that Navajo currently uses such that the effectiveness of

the conventional combustion promotor is maintained (the “Minimum Conventional Combustion

Promotor Addition Rate”); (2) replacing the conventional combustion promotor with Low NOx

Combustion Promotor at an addition rate that is the functional equivalent of the Minimum

Conventional Combustion Promotor Addition Rate (the “Initial Low NOx Combustion Promotor

Addition Rate”); and (3) increasing the addition rate up to two times the Initial Low NOx

Combustion Promotor Addition Rate if the Initial Low NOx Combustion Addition Rate is not

effective (the “Optimized Low NOx Combustion Promotor Addition Rate”).

B. “Effectiveness” Determinations. The effectiveness of conventional combustion

promotor shall be determined by the following criteria: (1) afterburn is controlled and

regenerator temperature and combustion levels are adequately maintained; and (2) temperature

excursions are brought under control adequately. The effectiveness of Low NOx Combustion
Promotor shall be determined by those two criteria and by whether a measurable reduction in

NOx emissions occurs.

C. Establishing the Minimum Conventional Combustion Promotor Addition Rate. 

Navajo shall reduce its historical usage of conventional combustion promotors to the point that

the addition rate is the minimum necessary to retain the effectiveness of the conventional

combustion promotor that Navajo is using (“Minimum Conventional Combustion Promotor

Addition Rate”).

D. Establishing the Initial Low NOx Combustion Promotor Addition Rate. Based

on information provided by the vendor, Navajo shall replace conventional combustion promotor

with Low NOx Combustion Promotor at a rate that is the functional equivalent of the Minimum

Conventional Combustion Promotor Addition Rate. This functionally equivalent rate shall be

called the Initial Low NOx Combustion Promotor Addition Rate.

E. Establishing the Optimized Low NOx Combustion Promotor Addition Rate. If

the Low NOx Combustion Promotor is not effective at the Initial Low NOx Combustion

Promotor Addition Rate, Navajo shall increase, by up to two times, the Initial Low NOx

Combustion Promotor Addition Rate. If, at two times the Initial Low NOx Combustion

Promotor Addition Rate, the Low NOx Combustion Promotor is not effective, Navajo may

discontinue the use of Low NOx Combustion Promotor.
III. ESTABLISHING AN OPTIMIZED NOx REDUCING CATALYST ADDITIVE

ADDITION RATE 

A. Overview. The Optimized NOx Reducing Catalyst Additive Addition Rate shall be

determined by evaluating NOx emissions reductions and annualized costs at three different

addition rates.

B. The Increments. The three addition rates or “increments” shall be:

1.0 Weight % NOx Reducing Catalyst Additive

1.5 Weight % NOx Reducing Catalyst Additive

2.0 Weight % NOx Reducing Catalyst Additive

C. The Procedure. Navajo shall successively add NOx Reducing Catalyst Additive at

each increment set forth above. Once a steady state has been achieved at each increment, Navajo

shall evaluate the performance of the NOx Reducing Catalyst Additive in terms of NOx

emissions reductions and projected annualized costs. The final Optimized NOx Reducing

Catalyst Additive Addition Rate shall occur at the lowest addition rate where either:

(1) the FCCU meets 20 ppmvd NOx (corrected to 0% O2) on a 365-day rolling

average, in which case Navajo shall agree to accept limits of 20 ppmvd NOx

(corrected to 0% O2) on a 365-day rolling average basis at the conclusion of the

Demonstration Period;

(2) the total annualized cost-effectiveness of the NOx Reducing Catalyst Additive

used exceeds $10,000 per ton of NOx removed as measured from an uncontrolled

baseline (as estimated based on current operating parameters as compared to

operating parameters during the baseline period); or 

(3) the Incremental NOx Reduction Factor is less than 1.8, where the Incremental

NOx Reduction Factor is defined as:

PRi

 - PRi-1

CARi - CARi-1 where:

PRi = Pollutant (NOx) reduction rate at increment i in pounds per

day from the baseline

PRi-1 = Pollutant (NOx) reduction rate at the increment prior to

increment i in pounds per day from the baseline
CARi = Total Catalyst Additive Rate at increment i in pounds per

day from the baseline

CARi-1 = Total Catalyst Additive Rate at the increment prior to

increment i in pounds per day from the baseline

If the conditions of either (1), (2), or (3) above are not met at any addition rate less than 2.0

Weight % NOx Reducing Catalyst Additive, then the Optimized Addition Rate shall be 2.0

Weight % NOx Reducing Catalyst Additive.
APPENDIX E

NSPS SUBPART J COMPLIANCE

SCHEDULE FOR FLARES
APPENDIX E

NSPS SUBPART J COMPLIANCE SCHEDULE FOR FLARES

Source Date of Compliance Method/Proof of

Compliance

NAVAJO REFINERY

ARTESIA, NM

North Plant Flare (FL-400) Immediate For each routinely-generated

refinery fuel gas stream that

is directed to this flare on a

continuous or intermittent

basis, Navajo will monitor

this stream with either (i) a

CEMS; or (ii) will submit for

EPA approval, a

fully-approvable alternative

monitoring plan (“AMP”) by

no later than 90 days after the

Date of Lodging of this

Consent Decree.

FCC Unit Flare (FL-402) Immediate Same as above.

Alky/CCR Flare (FL-403) Immediate Same as above.

South Plant Flare (FL-401) Immediate Same as above.

GOHT Flare (FL-404) Date of Installation Same as above, except that if

Navajo monitors by means of

an AMP, Navajo shall submit

the AMP by no later than 90

days after installation of this

Flare
NAVAJO REFINERY, 

LOVINGTON, NM

LPG Flare (FL-1001) December 31, 2006 By no later than June 30,

2007, Navajo shall submit for

EPA approval, a

fully-approvable AMP.

MONTANA REFINING,

GREAT FALLS, MT

Emergency Flare (D-720) Immediate By no later than 180 days

after the Date of Lodging of

this Consent Decree,

Montana Refining shall

submit for EPA approval, a

fully-approvable AMP.
APPENDIX F

LOGIC DIAGRAM FOR PARAGRAPH 20


Was the Root Cause: - failure to follow written procedures? or

 - error resulting from careless operation by the personnel 

 charged with the responsibility for the SRP, TGU, or 

 Upstream Process Units? or

 - equipment failure due to a failure by Navajo to operate and

 maintain that equipment in a manner consistent with good 

 engineering practices? or

 - shutdowns and maintenance of Compressor C-110 or the FCCU

 wet gas compressor? or

 - hydrocarbon carryover resulting in an SRP shutdown

 Paragraph 51 applies except in cases

of Force Majeure

Paragraph 51 applies with caveats set

forth in Paragraph 20.C.ii

Yes



Yes



Is this the first time for

the Root Cause of this

Flaring Incident?

Was the Root Cause sudden, infrequent, and not

reasonably preventable through the exercise of good

engineering practice?

Establish and update a list of agreed-upon Malfunctions



No

No

Implement Corrective Action pursuant to

Paragraph 20.B

STOP

Is the Root Cause on

the list of agreed upon

Malfunctions?

Yes 



No





No

Did the Flaring incident:

- result in emissions of SO2 at a rate greater than 

 20 lbs/hr continuously for three consecutive hours and 

 no scheduled maintenance exception? or

- cause the total number of Flaring Incidents in a 

 rolling 12 month period to exceed 5?

Yes





No



Yes

Paragraph 51 applies with caveats set

forth in Paragraph 20.C.iii.b

STOP

 APPENDIX F

 LOGIC DIAGRAM FOR PARAGRAPH 20

ALL FLARING INCIDENTS 
APPENDIX G

REPORTS, PLANS AND CERTIFICATIONS

FOR THE BENZENE WASTE NESHAP

ENHANCED PROGRAM PROVISIONS

OF PARAGRAPH 22
APPENDIX G

REPORTS, PLANS AND CERTIFICATIONS

UNDER THE BENZENE WASTE NESHAP ENHANCED PROGRAM

PROVISIONS OF PARAGRAPH 22 OF THE CONSENT DECREE IN

UNITED STATES ET AL. V. NAVAJO REFINING CO. ET AL.

Name or Summary of the

Report, Plan, or

Certification

CD

SubPara

No.

Applicable 

Refinery(ies)

“All” means all

Covered Refineries

Rqd.

(“R”)

v.

Contingent

(“C”)

OneTime

(“1")

v.

Quarterly

 (“Q”)

Due Date

BWN Compliance Review

and Verification Report

C.i. All R 1 270 D after Lodging

Amended BWN

Compliance Review and

Verification Report

C.ii. All C 1 90 D after completing 

additional sampling

requested by EPA 

Amended TAB Report D.i All C 1 60 D after completing

BWN Compliance

Review and

Verification Report

Plan to comply w/ 6 BQ if

TAB equals or is greater

than 10

D.ii;

J.vi.

All C 1 180 D after completing

BWN Compliance

Review and

Verification Report

Compliance Certification D.iv All C 1 30 D after completing

all actions necessary to

come into compliance

Waste/Slop/Off-Spec Oil

Schematics

H.i. All R 1 90 D after Lodging

Revised Waste/Slop/OffSpec Oil Schematics H.i. All C 1 Mutually-agreed upon

time between Navajo

and/or Montana

Refining and EPA
Schedule to complete

installation of controls on

waste management units

handling organic benzene

waste

H.ii. All C 1 Mutually-agreed upon

time between Navajo

and/or Montana

Refining and EPA, not

to exceed 2 years

Plan to quantify

uncontrolled

waste/slop/off-spec oil

movements

H.iv. All R 1 90 D after EPA has

approved schematics

EOL Sampling Plan I.i;

J.ii

All C 1 2 mos. after the

22.D.iii Certification

(if TAB is 10 mg/yr or

greater); 90 days after

submitting final BWN

Compliance Review

and Verification Report

(if TAB is 1 Mg/yr or

more but less than 10)

EOL Revised Sampling

Plan

I.ii;

J.ii.

All C As

needed

If and when Navajo

and/or Montana

Refining become aware

of factors indicating

original plan no longer

accurately reflects EOL

benzene quantity

Plan to ensure that

uncontrolled benzene does

not equal or exceed, as

applicable, 6 or 10 Mg/yr or

that it is minimized

I.vii;

J.ivJ.v

All C 1 30 D after the end of 

the Q in which the

projected calendar year

benzene quantity is

equal to or greater than

6 or 10 Mg.

Proposal for Third-Party

TAB Study and Compliance

Review

Iviii;

J.vi

All C 1 Last day of 4th Q as

set forth in ¶ I.viii. (if

TAB is 10 mg/yr or

greater); As agreed bet.

EPA and Navajo

and/or Montana (if

TAB is 1 Mg/yr or

more but less than 10)

Refining
Third-Party TAB Study and

Compliance Review

Iviii;

J.vi

All C 1 30 D after receipt of

the Third-Party Study

and Compliance

Review

Plan to implement the

results of the Third-Party

TAB Study and Compliance

Review

Iviii;

J.vi;

All C 1 120 D after receipt of

the Third-Party TAB

Study and Compliance

Review

Report on training done in

that Q

G.iiii.;

Miia(1)

All C Q Each Qtrly Report

due under the Decree 

Results of annual sampling

of >0.05 Mg/yr benzene

streams

J.i;

Miia(2)

All C Q In the first Qtrly Report

for the first calendar Q

of each year

Results of 3 Months of

Monthly EOL Results

I.iii;

J.iii;

Miia(3);

Miib(2)

All C Q Each Qtrly Report

due under the Decree

Results of Sampling of 

> 0.05 Streams

I.iv

I.v;

Miib(3)

All C Q Each Qtrly Report

due under the Decree,

Results of Sampling of

> 0.03 Streams

I.vi

Miib(3)

All C Q Each Qtrly Report

due under the Decree,
APPENDIX H

REPORTS, PLANS AND CERTIFICATIONS

FOR THE LDAR

ENHANCED PROGRAM PROVISIONS

OF PARAGRAPH 23
APPENDIX H

REPORTS, PLANS AND CERTIFICATIONS

UNDER THE LDAR ENHANCED PROGRAM

PROVISIONS OF PARAGRAPH 23 OF THE CONSENT DECREE IN

UNITED STATES, ET AL. V. NAVAJO REFINING CO., ET AL.

Name or Summary of the

Report, Plan, or

Certification

CD

SubPara

Nos.

Applicable 

Refinery(ies)

“All” means all

Covered

Refineries

Rqd.

(“R”)

v.

Contingent

(“C”)

OneTime

(“1") v.

Quarterly

or w/

§63.654

Reports

(“>1”)

Due Date

Written Refinery-Wide

LDAR Program

A;

O.i.a

All R 1 150 D after Lodging

Updated Refinery-Wide

LDAR Program

A All C 1 As needed

Report on training for new

LDAR personnel

B.i;

O.iic(1)

All R >1 In each Section 63.654

Report

Report on annual training

for LDAR personnel

B.ii;

O.iic(1)

All R >1 In each Section 63.654

Report

Report on LDAR training

for refinery and operations

personnel who hold

positions relevant to LDAR

B.iii

O.iic(1)

All R >1 In each Section 63.654

Report
LDAR audit reports and

records of corrective actions

D;

O.iib.

All R >1 In the Qtrly Report for

the 1st calendar Q of

each year

Certification of

implementation of the first

attempt at repair program

G;

O.iia(1)

All R 1 In the first Qtrly report

due under the CD or

the first Qtrly report in

which the rqmt.

becomes due

Operational specifications

for electronic LDAR data

collection and transfer

I.ii.;

O.i.b

All R 1 6 mos. after Lodging

for Navajo; 1 yr. after

Lodging for Montana

Refining

Certification of

implementation of QA/QC

procedures for review of

data generated by LDAR

monitoring technicians

J;

O.iia(2)

All R 1 In the first Qtrly report

due under the CD or

the first Qtrly report in

which the rqmt.

becomes due

Identification of each

Refinery’s LDAR “point”

person

K;

O.iia(3)

All R 1 In the first Qtrly report

due under the CD or

the first Qtrly report in

which the rqmt.

becomes due

Certification of the

development of a tracking

program for new valves and

pumps

L;

O.iia(4)

All R 1 In the first Qtrly report

due under the CD or

the first Qtrly report in

which the rqmt.

becomes due

Certification of

implementation of

calibration drift assessment

procedures

M;

O.iia(5)

All R 1 In the first Qtrly report

due under the CD or

the first Qtrly report in

which the rqmt.

becomes due

Certification of

implementation of the

“delay of repair” procedures

N;

O.iia(6)

All R 1 In the first Qtrly report

due under the CD or

the first Qtrly report in

which the rqmt.

becomes due

Quarterly monitoring

reports

O.iic(2)All R >1 In each Section 63.654

Report